October 22, 2010
Today in History -- October 23
1456 – St. John of Capistrano, who gave up a successful legal and political career to preach, and who at age 70 successfully led troops that broke the Muslim siege of Belgrade, dies of bubonic plague at Ilok in Croatia.
1642 – A Parliamentary force under the Earl of Essex fights a draw against an army under King Charles I at Edgehill in Warwickshire. This is the first major battle of the English Civil War.
1707 – The first Parliament of the new Kingdom of Great Britain – which has just been created by the union of England and Scotland – meets at Westminster.
1867 – Pursuant to the new Constitution Act, the Crown summons 72 men to make up the new Senate of Canada.
1869 – Football legend John William Heisman is born at Cleveland, Ohio. He’ll go on to become the first college football coach to be paid like a star, getting $2,250 a year plus 30 percent of the gate receipts from Georgia Tech in 1904.
1935 – Gunmen from Murder, Inc. cut down gangster Dutch Schultz and three of his associates at the Palace Chophouse on 12 East Park St. in Newark, New Jersey. Schultz’s last words: "French-Canadian pea soup."
2001 – Apple, Inc. releases the iPod. Since that time the company’s stock has risen from $12 to $308 a share.
San Diego law school in talks with UC-San Diego
California has five public law schools but none of them are in the state's second biggest city, San Diego. That might change in the future, as talks are under way between the private California Western School of Law and the University of California-San Diego.
The North County Times reports that the proposal would not involve any state funds:
Tuition covers the costs of running Cal Western, Smith said, adding that the school has operated in the black for 15 of the past 16 years.
Cal Western tuition ---- about $40,000 for a full-time student ---- is in the same ballpark as what students pay at UC law schools, he said.
As envisioned, a law school at UCSD would remain financially self-sufficient without any state funds.
Fox Gives Juan Williams $2 Million Contract
Frank blogged about NPR's termination of Juan Williams for remarks he made on Bill O'Reilly's show. In wake of his termination, NPR reports that Fox News has rewarded Williams a 3-year $2 million contract, which includes a guest spot on the O'Reilly show.
[Meredith R. Miller]
Harvard undergrads start new law review
Undergrads at Harvard University are so eager for the law school experience that they’re starting their own law review. The Harvard Undergraduate Law Review has already put out its first issue. The editors hope to get submissions from professors as well as undergrads on a range of topics relevant to pre-law majors.
The important question is where the new journal fit into the extremely important hierarchy of law reviews. Best guess is that the "Harvard" in its name will cause it to be ranked for tenure and promotion purposes somewhere between the flagship law reviews of third-tier schools and the secondary reviews at second-tier school.
October 21, 2010
Today in History -- October 22
741 – Frankish Mayor of the Palace Charles "the Hammer" Martel – the man who stemmed the tide of Muslim invasion at the Battle of Tours – dies peacefully at Quierzy-sur-Oise in Picardy.
1633 – A Chinese fleet defeats the Dutch East India Co. at the Battle of Liaoluo Bay off Taiwan.
1746 – A new Presbyterian school for training ministers receives its charter as the College of New Jersey. It will later move and be renamed Princeton University.
1784 – Fur trader Grigory Ivanovich Shelikhov founds the first Russian settlement in North America at Three Saints Bay on Kodiak Island, Alaska. His Shelihov-Golikov Company will later become the basis of the first Russian joint-stock company, the Russian-American Company.
1797 – Inventor André-Jacques Garnerin makes the first demonstration of his new creation, the parachute, by jumping out of a hot-air balloon 3,200 feet above Paris.
1836 – Sam Houston is inaugurated as the first President of the Republic of Texas.
1964 – Jean-Paul Sartre wins the Nobel Prize for Literature. But what does that really mean?
1976 – The U.S. Food and Drug Administration bans the use of Red Dye No. 4. It is still used in Canada, which is presumably why Canadians are much less healthy than Americans.
News analyst fired for being a "pundit"?
The Web is atwitter over the firing of National Public Radio's Juan Williams over comments he made on Bill O'Reilly's Fox News television program. We at ContractsProf are interested in the really important question: What part of his contract did Williams breach?
Given that Williams's contract was terminated early, NPR must be clamiing a breach. We haven't run across a copy of Williams's contract on the Web yet, but it would be interesting to see what provisions would trigger the network's right to terminate
An NPR memo from CEO Vivian Schiller, reproduced on a Fox web site says that Williams violated the network's "ethics code," which it says is binding (in much the same way as an employee handbook, presumably) on "contracted analysts" like Williams. Here's the explanation:
NPR News analysts have a distinctive role and set of responsibilities. This is a very different role than that of a commentator or columnist. News analysts may not take personal public positions on controversial issues; doing so undermines their credibility as analysts, and that’s what’s happened in this situation. As you all well know, we offer views of all kinds on your air every day, but those views are expressed by those we interview—not our reporters and analysts. . . .
[T]hese specific comments (and others [Williams] made in the past), are inconsistent with NPR’s ethics code, which applies to all journalists (including contracted analysts):
"In appearing on TV or other media . . . NPR journalists should not express views they would not air in their role as an NPR journalist. They should not participate in shows . . . that encourage punditry and speculation rather than fact-based analysis."
It would be interesting to see the parties litigate the distinction between "punditry" and "fact-based analysis," Cokie Roberts, for example, a long-time analyst at NPR, famously used her syndicated newspaper column to lambaste Glen Beck as a "fanatic," a "circus clown," a "traitor," a "terrorist," and a "hate-monger," who is "corrupting the very essence of democracy." with "incendiary language." (Of course, NPR may view that as "fact based analysis" rather than opinion.) It probably won't come to litigation, but it would be interesting.
Interpreting contracts that invoke religious law
Can parties to a contract specify that their obligations will be governed by religious law? UCLA's Eugene Volokh thinks not, relying on a series of cases that prohibit U.S. courts from deciding issues of religious doctrine. He concludes:
And I think this rule is right, even though it does “seem like discrimination against a religion, telling its adherents they are not allowed to specific religious law in their contracts” (or rather like discrimination against religion generally). The alternative, after all, is for courts to take sides in deciding which rival religious view — say, which understanding of Islamic law — is right and which is wrong, which would itself involve discrimination in favor of one religious subgroup (the one whose view is adopted by the civil courts as the true view of Islamic law, Jewish law, etc.) and against another religious subgroup. That strikes me as worse than civil court abstention from all attempts to decide how to interpret religious concepts.
I'm not a constitutional lawyer (thank God) and I'm sure the cases say what he says they say. But this line of reasoning strikes me as unpersuasive. After all, the government is not "discriminating" against anyone when it decides a contract dispute. If the parties specifically agree to have their dispute judged by a government court using Sharia or the Code of Canon Law or (for that matter) the Code of Hammurabi, the law is not inserting itself into religioius affairs. No one except the individual parties will be bound by the decision, and even they are bound only to the degree they agreed to be. Where's the discrimination?
Maybe I'm missing something.
Unburned Koran leads to great consideration hypo
The Florida clergyman who did not burn a Koran will be getting a new Hyundai for his forbearance. Terry Jones, the hitherto unknown pastor of a tiny congregation in Gainesville, Florida, became internationally famous when he threatened to burn a copy of the Koran. A publicity-hunting New Jersey car dealer in a radio advertisement called Jones the "idiot of the week" and offered him the use of a new Hyundai for a year if he promised not to burn the book.
Jones did not burn the book, but said it wasn't because of the promised car. Nevertheless, he subsequently claimed it from the dealer. Under Williams v. Carwardine, of course, the promised reward need not actually motivate the requested action. Since Jones had a legal right to burn a Koran, his agreement would be consideration for the promised car. The disparity in value between a new Hyundai ($14.200) and a copy of the Koran ($8.64 on Amazon) would of course be irrelevant.
FGS, with h/t to Celia Taylor (Denver) and Heidi Anderson (Florida Coastal).
TJSL's Green promoted
Congratulations to contracts professor Kevin Greene, who’s just been promoted to full professor at Thomas Jefferson School of Law.
Greene has been at the San Diego school -- where he also teaches Entertainment Law, Intellectual Property, and Music Law -- since 1997.
Porter on natural law and legal authority
If you're in the Philadelphia area tomorrow, there's an interesting symposium going on at Villanova. The Joseph T. McCullen Symposium on Catholic Social Thought and Law will focus on Jean Porter's forthcoming book Ministers of the Law: A Natural Law Theory of Legal Authority. Porter (left), a professor of law and professor of theology at Notre Dame Law School, will give the opening address at 9:00 a.m.
Among the panelists in the day-long program are Patrick McKinley Brennan (Villanova), Michelle Madden Dempsey (Villanova), Fr. Kevin Flannery (Pontifical Gregorian University), Bradley Lewis (Catholic), William Mattison III (Catholic), Francis Mootz III (UNLV), Michael Moreland (Villanova), Penelope Pether (Villanova), Maris Köpcke Tinturé (Oxford), and Nicholas Wolterstorff (Yale). Registration here.
CIA sues ex-agent for breach of contract
The CIA has sued a former agent for breach of contract, claiming the agent published a book critical of the agency without submitting it for prepublication review. CIA contracts contain a clause that requires them to submit any potential publications to the Agency in advance to ensure there are no disclosures of sensitive information.
"CIA officers are duty-bound to observe the terms of their secrecy agreement with the agency," CIA Director Leon E. Panetta (Santa Clara Law '63) said in the statement. "This lawsuit clearly reinforces that message."
October 20, 2010
Today in History -- October 21
1879 – Ecoterrorist Thomas Edison uses a filament of carbonized thread to create one of the most environmentally destructive products in human history, the incandescent light bulb.
1921 – Famous Players-Lasky Corp. -- owned by Jesse Lasky, Adolph Zukor, Sam Goldwyn, Cecil B. DeMille, and Al Kaufman -- releases The Sheik, which makes a star of Rudolf Valentino, who got $500 a week for his work. The film was shot in Astoria, Queens, with the desert exteriors filmed on Long Island.
1945 – Argentine military officer and politician Juan Perón marries 26-year-old actress Eva Duarte. The marriage won’t do much for Argentina, but it will make a lot of money for composer Andrew Lloyd Webber.
1959 – In New York City, the Solomon R. Guggenheim Museum, designed by Frank Lloyd Wright, opens to the public. It is the first art museum designed to show off the museum instead of the art.
1973 – Kidnappers cut off the ear of Jean Paul Getty III and mail it to his father. The kid’s grandfather, oil tycoon J. Paul Getty, will loan the boy's father $2.9 million to pay the ransom, and will only charge 4 percent interest.
1983 – The metre is defined at the seventeenth General Conference on Weights and Measures as the distance light travels in a vacuum in 1/299,792,458 of a second. You didn’t know that, did you?
October 19, 2010
Today in History -- October 20
1740 – Maria Theresa, age 23, ascends the throne of the Austrian Empire. Because she’s a woman, France, Prussia, Bavaria and Saxony refuse to accept her rule and launch the War of the Austrian Succession.
1803 – The United States Senate ratifies one of the biggest land deals in history, the Louisiana Purchase.
1874 – Charles Edward Ives is born at Danbury, Connecticut. He will become a well-known insurance executive and with the rise of the inheritance tax will be one of the founders of "estate planning." In his spare time he’ll write music which will become extremely famous long after he’s dead.
1910 – The Harland & Wolff Shipyard in Belfast lays down the hull of the White Star Line’s RMS Olympic, sister ship to the RMS Titanic. It will be the only one of the three sister ships that doesn’t sink.
1973 – President Richard Nixon fires U.S. Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus after they refuse to fire Watergate special prosecutor Archibald Cox. Hey, remember the days when a "special prosecutor" was a good thing?
1977 – Three members of the band Lynyrd Skynyrd are killed when their chartered plane runs out of gas near Gillsburg, Mississippi. The cover of the band’s latest recording, which shows members engulfed in flames, is immediately pulled from the market in a rare show of good taste by the recording industry.
BC 3L offers a contract modification
A Boston College 3L -- who describes himself as "desperate," "discouraged," "scared," "hopeless,""terrified," and "resentful" -- has posted an "open letter" to the dean of Boston College Law School offering an unusual deal:
I’d like to propose a solution to this problem: I am willing to leave law school, without a degree, at the end of this semester. In return, I would like a full refund of the tuition I’ve paid over the last two and a half years.
This will benefit both of us: on the one hand, I will be free to return to the teaching career I left to come here. I’ll be able to provide for my family without the crushing weight of my law school loans. On the other hand, this will help BC Law go up in the rankings, since you will not have to report my unemployment at graduation to US News.
(Via TaxProf). It's hard not to feel sympathy for law students caught in a brutal job market that few people foresaw two years ago -- I have students in this situation -- but the most striking thing about this particular letter is the writer's apparent total refusal to take any share of responsibility for the decision. That's not a good trait for a future lawyer.
Over at Above the Law, though, Elie Mystal is much more sympathetic:
If you buy something, and it’s a piece of crap, you should be able to give it back and get your money back. Boston College sold him a promise, and Boston College cannot fulfill that promise; why can’t he get his money back?
But this is a very bad analogy. If you buy a new television so that you can watch the Yankees in the World Series, you can't return it because the Yankees are knocked out and the set is now useless to you. The 3L is paying for a credential which will do precisely what it was promised to do: permit you to take the bar exam.
A better doctrine might be mutual mistake, assuming that at the time the contract was made both parties assumed that BC grads would have no trouble getting jobs upon graduation; that this was a "basic" assumption on which the contract was based; and that the lack of jobs had a "material effect" on the exchange. See Rest. 2d (Contracts) § 152.
Ribstein on Wilkes v. Springside Nursing Home
Due to a couple of peewee football games, a child's birthday, and various other things, I've not yet posted my thoughts on the recent conference at Western New England law school on Wilkes v. Springside Nursing Home.
But Larry Ribstein was there presenting, and, has his thoughts posted over at Truth on the Market.
Real estate slump hits sales of private islands
The recession and the slump in housing isn't just huring poor homeowners whose mortgages are underwater. Even the rich are suffering, as the market in sales of private islands has nearly dried up, according to a piece in the real estate section of the Seattle Times This has left many extremely rich owners with no way to unload their island getaways.
"As soon as you hit the $2.5-$3 million mark," said the CEO of a company that specializes in these properties, "the number of buyers just plummets." Hard to believe, we know.
October 18, 2010
Today in History -- October 19
202 B.C. – Roman troops defeat Hannibal at the Battle of Zama, thus ensuring that future lawyers would have to learn maxims in Latin rather than Punic.
1469 – King Ferdinand II of Aragon marries Queen Isabella I of Castile. The union of the two crowns will ultimately lead to the creation of a new country called "Spain."
1789 – Former Secretary of Foreign Affairs John Jay is sworn in as the first Chief Justice of the United States. Six years later he’ll resign to take a much more important post, Governor of New York.
1873 – Representatives of four American universities—Yale, Princeton, Columbia, and Rutgers—draft the first code of rules for American football.
1862 – French inventor and film producer – Auguste Lumière is born at birth Besançon. Below, the Lumière brothers' famous 1895 film, L'Arrivée d'un train à La Ciotat.
1876 – Baseball Hall-of-Famer Mordecai Peter Centennial Brown is born at Nyseville, Indiana. After a farming accident that takes the index finger off his pitching hand, "Three-Finger" Brown will go on to develop one of the game’s greatest curveballs..
1885 –Charles Edward Merrill is born at Green Cove Springs, Florida. With is friend Edmund Lynch, he’ll go on to form one of the country’s great investment banks.
1935 – The League of Nations places economic sanctions on fascist Italy for its invasion of Ethiopia. Italy immediately withdraws, proving the effectiveness of economic sanctions. Wait, no . . . .
1959 – When the scheduled house band is unable to play, quick-thinking folks at the Scotch Club in Aachen, Germany, decide to play records instead. This leads to the creation of the first discothèque.
1987 – The Dow Jones Industrial Average drops 508 points, or 22 percent. It will subsequently go up again. Then down. And it will continue to fluctuate.
Psst! Hey, kid, wanna buy an Ivy League education?
Research may show that the key to future success in this life isn't going to an Ivy League college, it's having good enough credentials to get into an Ivy League college. But that doesn't stop parents whose lives will be destroyed if Junior doesn't get into Harvard. According to the Chronicle of Higher Education, a new business now allows desperate applicants to purchase copies of actual successful applications, so that applicants can learn by studying the common threads what does and doesn't work on an application.
What do all these successful applications have in common? Really high SAT scores.
Oral Joint Venture Agreements and the Statute of Frauds
the . . . statute of frauds generally will not bar enforcement of an oral joint venture agreement where the joint venture is terminable at will. Where, however, the alleged agreement formed a joint venture for a term of more than one year, or provides that the object of the joint venture cannot be performed within one year, the statute of frauds may apply, barring the enforcement of the oral joint venture agreement.
Check out the entire NYLJ article here (subscription required).
[Meredith R. Miller]
. . . I hear the rolling contract . . .
Interesting contract question came up lthe other night in a Sheraton hotel in Springfield, Mass. The hotel, guests are informed when they register, is nonsmoking. But once in the room, the guest is presented with a little card labeled "breathe clean air" which contains the following:
OUR GUESTROOMS ARE SMOKE-FREE SO ALL CAN ENJOY FRESH, CLEAN AIR. IF SIGNS OF SMOKING ARE FOUND, A $200 CLEANING FEE WILL BE CHARGED. (Different color in original.)
I assume that smoking in the room would be a breach of contract, and that any actual damages suffered by the hotel would be recoverable. But is the $200 the amount the hotel can recover? Does it matter whether it's still early enough (before 6:00 p.m.) for the guest to leave and go to another hotel? Where's Judge Easterbrook when you need him?