Friday, January 6, 2012
Please join us at the Contract Section's program, New Voices in Contracts Scholarship, scheduled for Saturday, January 7, 2012, from 1:30 to 3:15 p.m., at the Marriott Wardman Park Hotel. The program will feature three junior scholars whose proposals the selection committee chose from the many quality responses to our CFP.
In alphabetical order, the featured speakers and their topics are
Aditi Bagchi (University of Pennsylvania Law School), Parallel Contract;
Mohsen Manesh (University of Oregon School of Law), Contractual Freedom under Delaware Alternative Entity Law; and
Emmanuel Voyiakis (London School of Economics & Political Science, Department of Law), Contract Law and Reasons of Social Justice.
There will be a brief business meeting following the program.
We have already presented Stanford Law's Richard Craswell's takes on Frigaliment and Lumley. Today, we offer his song about Wood v. Lady Duff Gordon, a case we have previously mentioned, for example here, here, here, here, and here.
Here is Professor Craswell's summary:
Born Lucy Sutherland, she married a Baronet and became one of the first celebrity fashion designers, enjoying success in the UK and France. Her American ventures were less successful, though, especially the effort to sell her designs through Sears and other mass retailers. Among other problems, she had already granted her American marketing rights -- including the right to half of the profits on each sale -- to a publicity agent, Otis Wood.
When Mr Wood sued for the unpaid royalties, Lady Duff-Gordon defended on the ground that Wood had not explicitly PROMISED he would do anything in return, so Duff-Gordon's promise to Wood was unenforceable for lack of "consideration." New York's highest court disagreed, in a famous opinion by Judge Benjamin Cardozo,
For a discussion of the case's historical context, see Victor P. Goldberg, "Reading Wood v Lucy, Lady Duff-Gordon with Help from the Kewpie Dolls," in his book, Framing Contract Law: An Economic Perspective 43 (2006). Other useful discussions can be found in the symposium introduced by James J. Fishman, "The Enduring Legacy of Wood v Lucy, Lady Duff-Gordon," 28 Pace L. Rev. 161 (2008); and in Mary Joe Frug, "Re-Reading Contracts: A Feminist Analysis of a Casebook, 34 American U. L. Rev. 1065 (1985).
And here's the video:
Thursday, January 5, 2012
Here is today's installment of the first-year course set to music by Richard Craswell. This time it's Lumley v. Wagner, Lumley v. Gye, a case we have not spoken about previously on the blog. So here is Professor Craswell's summary of the case:
In 1852, soprano Johanna Wagner (the niece of the famous composer) agreed to perform for three months in London at Her Majesty's Theatre, operated by Benjamin Lumley. The contract, which described her as "cantatrice of the court of His Majesty the King of Prussia," specified that Wagner could not perform at any other London theatre during that time. However, after Lumley failed to pay Wagner the advance that her contract required, Wagner accepted a better-paying engagement at Frederick Gye's Royal Italian Opera Theatre in Covent Garden, London. ¶ Courts then (as now) were reluctant to issue injunctions compelling artistic performances, in part because a coerced performance might not be very good. Lord St Leonard, England's Lord Chancellor, found a solution by ordering Wagner NOT to sing at any OTHER theater during those months. ¶ For more on the history and context of this case, see Lea S. VanderVelde, "The Gendered Origins of the Lumley Doctrine: Binding Men's Consciences and Women's Fidelity," 101 Yale L.J. 775 (1992).
We note that the case is the subject of a recent law article, A New Tortious Interference with Contractual Relations: Gender and Erotic Triangles in Lumley v. Gye, by Sarah Lynnda Swan.
For those who don't want to jump to the link, here's a taste of what Scott has to say:
Contracts: A Context and Practice Casebook by Michael Hunter Schwartz and Denise Riebe is one of the new type of casebooks that combines doctrine, skills, and professionalism into the same course. This book does this very successfully, and it can serve as a model for future casebooks.
. . . .
It is on the chapter level that Schwartz and Riebe depart from the usual model of casebooks. While each chapter still largely consists of edited cases, the authors have added other materials on problem solving and other miniskills. Each chapter begins with a real-world problem, which the student is required to solve at the end of the chapter. The solution can be an exam answer, an office memo, a client letter, contract clauses, etc. Unlike traditional casebooks, each chapter introduces the subjects of that chapter, often with visual aids that help the students organize the doctrine. The authors organize each subtopic around cases. They ask focused questions before each case and have follow up questions and exercises afterwards. The exercises are hypotheticals, synthesis exercises, and problem-solving exercises. Each chapter ends with professional development reflection questions. (Where better to teach contracts ethics than in contracts?) Not only do these questions deal with contract ethics, they include questions and exercises on student well-being.
After having thoroughly studied this casebook over the last few weeks, I believe that it accomplishes what it sets out to do.
I had not heard to this casebook before -- or even of this series. I note that the Casebook is somewhat shorter than others I have looked at, but it costs about half as much. Something to keep in mind in these troubled economic times.
Wednesday, January 4, 2012
Stanford Law's Richard Craswell has shared with us a link to his collection of contracts YouTube videos. But a pig this good you eat one leg at a time. So for now, we just include his song about Frigaliment, Judge Friendly's great chicken coup. It's not like we haven't written about this case before, for example, here, here, here, here and here.
But we never tire of new approaches to the case. Here's Richard Craswell's:
Tuesday, January 3, 2012
Ninth Circuit Upholds Immunity for Telecommunications Companies that Assisted in Warrantless Wiretapping
In re National Security Agency Telecommunications Records Litigation is a big case. How big? The caption alone takes up over twenty pages in the 9th Circuit's most recent opinion. The basic facts are fairly familiar. During he Bush administration, the National Security Agency (NSA) created a program called the "Terrorist Surveillance Program," which plaintiffs, supported by journalistic accounts, allege permitted warrantless wiretaps of their communications. Plaintiffs further allege that the telecommunications companies assisted the government in undertaking such warrantless surveillance of U.S. citizens who happened also to be their customers.
Congress stepped in to assist these good corporate citizens which had after all just done their part to aid their country and the NSA. In 2008, it amended the Federal Intelligence Surveillance Act (FISA) to grant effective immunity to the telecommunications companies against suits such as the ones consolidated in this case. At issue in this appeal was only Plaintiffs' challenge to the constitutionality of that grant of immunity.
The Ninth Circuit upheld the constitutionality of the amendment to FISA. Plaintiffs' claims against the government can proceed -- at least until they are dismissed on national security or state secrets grounds further down the road.
Monday, January 2, 2012
Last week, National Public Radio's Morning Edition had a report about contracts that pay celebrities six figures to show up at events. The ever-eye-catching Kim Kardashian (pictured at left) provides the lead, with news of a $600,000 contract that paid Ms. Kardashian to "host a party" (whatever that means) at a Las Vegas hotel and then pop in to the club for "special appearances" in 2012.
As Kim Masters,interviewed by NPR's Linda Wertheimer notes, that is a lot of money for someone who is "famous only for being famous." The deal works out very well for the club, which charges outrageous prices to those who want to attend its parties and have the pleasure of meeting Ms. Kardashian. It works out well for the latter as well, who has notorious difficulties finding a party date.
And though we lame academics might find it hard to imagine someone who will relish the memories of having attended a party hosted by the Kim Kardashian more than $225 spent on Las Vegas's more wholesome entertainments, we likely have to concede that all invovled did the appropriate hedonistic calculus and concluded that they were getting value for their money.
But not all celebrity contracts work out so well, NPR reminds us. Hilary Swank (pictured at right) recently made the faux pas of accepting payment to attend a birthday party for the Chechen dictator Ramzan Kadyrov. As the international Business Times reports, Ms. Swank has expressed embarrassment at having accepted the invitation, which apparently involved six-figure compensation. Although human rightsorganizations warned her not to attend the event,
Ms. Swank claims that she did not receive the warnings, and she plans to donate the proceeds to charity. Here, the motivations are a bit more mysterious. Ms. Swank was not the only celebrity to attend Mr. Kadyrov's party. Clearly, he benefits from basking in such reflected glory (such as only the likes ofJean-Claude Van Damme can provide). And it seems arguable that Mr. Van Damme does not have a lot of other opportunities on his plate right now. But one would think that a two-time Oscar winning actor in her prime would have better things to do with her time.
Moreover, those of us who object to paying celebrities for their existence are for the most part free to opt out. The people of Chechnya are likely paying the bills for the human baubles with which their dictator chooses to surround himself.
In his "Santaland Diaries" from 1992, David Sedaris's account of two seasons working as a Macy's elf, he admits that he got bored after being a Window Elf for a while. The Window Elf's job is to say, "Step on the Magic Star and you can see Santa!" After saying that a few hundred times, Sedaris improvised a bit: "Step on the Magic Star and you can see Cher!" People got excited. They left the Santa line to have a look, and then they got mad when they saw only Santa. Sedaris wonders what they really expected: "Is Cher so hard up for money that she would agree to stand behind a two-way mirror at Macy's?" Well, maybe by now she would be. I'm pretty certain Kim Kardashian would do it if Macy's agreed to throw in some swag.
The scene falls 3:45 in on the YouTube link above.