Thursday, March 15, 2012
Two years ago, we reported on a case involving two sisters who feuded over whether a purported agreement to share gambling winnings covered one sister's lottery winnings. At the time, we wondered why humans can't be more like monkeys, who it seems, have an innate sense of the duty to share.
Today's New York Times brings further evidence that, as our higher faculties have evolved, we have not yet reached monkey levels when it comes to fair play in the distribution of lottery winnings. Today's Times provides the story of a construction worker who allegedly bought lottery tickets on behalf of five co-workers. When one of defendant's tickets turned out to be worth $38.5 million, he pocketed the winnings (about $17.5 million after taxes) and quit his job, claiming a foot injury. Defendant claimed that the winning ticket was one that he bought with his own money. A jury disagreed and ordered the defendant to share the winnings. Now, they all get to fight with the IRS to determine the proper taxation rate.
The Times report includes the following telling comment:
“I play by myself because I don’t trust people,” said the man, who would give his name only as Sean, explaining that he regularly played Mega Millions and other games. “Am I shocked he tried to keep the money for himself? No. It’s human nature."
Sean, you should find yourself some monkeys with whom you could play Mega Millions.
The University of Mississippi is seeking applicants for a one-year visit during the 2012-13 academic year. Our primary curricular need is a full-year contracts course. Other subjects are negotiable. Interested applicants must apply on line at jobs.olemiss.edu. Please include a CV and a cover letter (including courses he or she is best prepared to teach). For more information please contact Donna Davis, Chair, Faculty Appointments Committee at firstname.lastname@example.org. Please put "visiting position" in the subject line. The University of Mississippi is an EEO/AA/Title VI/Title IX/Section 504/ADA/ADEA employer.
We learned yesterday from the University of Wisconsin Law School website that Professor Emeritus John Kidwell died last week. Here is the text from the Wisconsin website.
The University of Wisconsin Law School is deeply saddened by the loss of Professor Emeritus John Kidwell, who passed away in Madison last week.
Professor Kidwell was born in Denver, Colorado and grew up in Custer, South Dakota. After high school he attended the South Dakota School of Mines and Technology for two years, contemplating a degree in physics, but changed plans when, in his own words ". . . I encountered The Calculus, and The Calculus won." He transferred to the University of Iowa and majored in English, receiving his B.A. from the University of Iowa in 1967 (With Distinction, Honors Program, Phi Beta Kappa). He then attended Harvard Law School and received his J.D. in 1970 (cum laude). He took a job as an associate with the Denver, Colorado law firm of Dawson, Nagel, Sherman & Howard.
Professor Kidwell joined the University of Wisconsin Law Faculty in 1972 as an assistant professor, and except for a year as a Fellow in Law and Humanities at Harvard University in 1976-77, was here continuously. He served as Associate Dean for Academic Affairs from 2002-2005 before retiring from the full-time faculty in June 2005.
Professor Kidwell regularly taught courses dealing with the law of contracts, remedies, copyrights, and trademarks. He was the recipient of the Emil H. Steiger award for teaching excellence, and had been chosen Teacher of the Year by the Wisconsin Law Alumni Association. He was a co-author of Wisconsin Law School’s
signature “Contracts: Law in Action,” a casebook published by Lexis/Nexis, as well as a co-author of "Property: Cases and Materials," published by Aspen. Among his many service activities, he served as a member, and ultimately Chair, of the Wisconsin Board of Bar Examiners. He was a member of the Testing Policy Committee of the National Conference of Bar Examiners, and continued working on bar examination issues for that body up until the very last weeks before his death.
John Kidwell leaves behind his wife and son, Jean and Ben Kidwell. A man of broad and eclectic interests, he characterized his interests and activities as “reading, listening to music, idle conversation and the game of poker.”
Wednesday, March 14, 2012
In my first post about my observations of contracting culture in New Zealand, I mentioned the unusual lack of contracts that consumers are forced to sign compared to in the States. Why wasn't I forced to sign a scary, multi-page, fine print form before my family was carried away on (very) rocky waters to swim with sea creatures in the open ocean? (Where was the laundry list of potential hazards that the company was not liable for, e.g. jumping in before the propeller blades were shut off, drowning, shock from the freezing water, hypothermia, being suffocated by too tight wetsuit and rubbery head cover, getting kicked in the face by flippers worn by German tourist....) Why didn't our visit to a traditional Maorian village include a standard form releasing the village from all liability if we fell into a steam vent or ate one of the very alluring, perfectly round and unusually blue berries that were tradiitonally used for dye - and which are very poisonous?
And then I found out about New Zealand's tort reform law. Back in the early seventies (the heyday of consumer regulatory reform everywhere, it seems), New Zealand adopted the Accident Compensation Act which basically abolished the ability to sue for personal injuries (providing a comprehensive no-fault benefits and rehabilitation scheme instead). I found this article by Peter Schuck which does a great job of outlining the kiwi approach to tort reform (which is, incidentally, called "Tort Reform, Kiwi-Style).
The case of the missing SFC. Mystery solved!
We are happy to see new publications by two of our colleagues (Danielle Kie Hart, below left) and Cheryl Preston (below right) who presented at the annual Spring Contracts Conference earlier this month.
Ayoub M. Al-Jarbou, Administrative Contracts under Saudi Arabian Law. 41 Pub. Cont. L.J. 75 (2011).
Debra D. Burke, and Angela J. Grube, The NCAA Letter of Intent: A Voidable Agreement for Minors? 81 Miss. L.J. 265 (2011)
Lauren Groth, Transforming Accountability: a Proposal for Reconsidering How Human Rights Obligations Are Applied to Private Military Security Firms. 35 Hastings Int'l & Comp. L. Rev. 29 (2012).
Michael Holt & Gregory Klass, Implied Certification under the False Claims Act, 41 Pub. Cont. L.J. 1 (2011)
Cheryl B. Preston & Brandon T. Crowther, Infancy Doctrine Inquiries. 52 Santa Clara L. Rev. 47 (2012).
Gabriella M. Racca, Roberto Cavallo Perin & Gian Luigi Albano, Competition in the Execution Phase of Public Procurement, 41 Pub. Cont. L.J. 89 (2011)
Claudia T. Salomon, & J.P. Duffy, Enforcement Begins When the Arbitration Clause Is Drafted, 22 Am. Rev. Int'l Arb. 2714 (2011).
Nadine Tushe, U.S. Export Controls: Do they Undermine the Competitiveness of U.S. Companies in the Transatlantic Defense Market? 41 Pub. Cont. L.J. 57 (2011).
Robert P. Wise, Finding the Mississippi UCC Sales Contract amid the RFQ, Quotes, Phone Calls, Emails, Purchase Order and Acknowledgement Forms, 30 Miss. C.L. Rev. 491 (2012)
Tuesday, March 13, 2012
The newly formed LSU Journal of Energy Law and Resources at the Louisiana State University Paul M. Hebert Law Center invites submissions of scholarly articles and proposals for articles for publication in its inaugural issues, slated for publication in the Fall of 2012 and the Spring of 2013. The LSU Journal of Energy Law and Resources is a student-edited journal devoted to the promotion of legal scholarship in energy law. The Journal is committed to publishing a variety of energy law topics, including articles focusing on energy law contracts and transactions.
Submissions: For publication in our Fall 2012 issue, please submit a completed paper, along with a cover letter and CV, to email@example.com by April 15, 2012. All completed papers submitted after April 15th will be considered for the Spring 2013 issue and should be submitted no later than October 15, 2012. If you wish to submit a proposal for a paper, please submit your proposal of no more than 500 words briefly describing the issue along with a CV by attachment to firstname.lastname@example.org. Proposals for papers will be considered on a rolling basis, but will not be considered for the Fall 2012 issue.
As reported in the Miami Herald, the Florida legislature attempted to close a budget gap through Senate Bill 2100, which cut state and local workers’ salaries by three percent, eliminated cost of living adjustments, and shifted savings into the general revenue fund to offset the state’s contribution to the workers’ retirement account. State worker and their unions challenged the law.
Last week, on cross-motions for summary judgment in Williams v. Scott, Circuit Court Judge Jackie Fulford ruled against the Florida legislature. Judge Fulford found that the three percent salary cut is an unconstitutional taking of private property without full compensation. Permitting the cut would condone a breach by the state of the workers’ contracts in violation of the workers’ collective bargaining rights. To rule otherwise, Judge Fulford noted, “would mean that a contract with our state government has no meaning, and that the citizens of our state can place no trust in the work of our Legislature.” Judge Fulford ordered the money returned with interest.
Judge Fulford first distinguished this case from a 1981 Florida Supreme Court (pictured) case, Fl. Sheriffs Ass’n. v. Dept. of Admin., 408 So. 2d 1033 (Fl. 1981), in which the court found no impairment of contract when a special risk credit was reduced from 3% to 2%. While that case implicated only individual elements of future accruals within the state retirement plan, this case involves a complete change of that system from a noncontributory to a contributory plan. In this case, Judge Fulford found an impairment of contractual rights and found that the impairment is substantial. State impairment of contractual rights is nonetheless permissible if the state can demonstrate a compelling interest. But Judge Fulford found that the state was unable to make such a showing. A significant budget shortfall is not enough.
Judge Fulford also found that Senate Bill 2100 would effect an unconstitutional taking under the Florida state constitution. Bill 2100 also violates collective bargaining rights protected under Florida’s constitution, according to Judge Fulford.
According to the Miami Herald, this ruling leaves a $1 billion hole in the state budget for the 2011-12 budget year, another $1 billion hole for the 2012-13 budget year, and also delivers a $600 million blow to the Florida Retirement System. Governor Rick Scott vowed to swiftly appeal the “simply wrong” decision so that it has no effect on the current budget. Scott called Judge Fulford’s ruling “another example of a court substituting its own policy preferences for those of the legislature.” For what it's worth, Judge Fulford was appointed by Governor Scott’s Republican predecessor as Governor of Florida.
[JT & Christina Phillips]
Monday, March 12, 2012
We wondered a few months back whether Alabama's immigration law might give rise to a Contract Clause challenge. Section 27 of that law, with a few exceptions, bars Alabama courts from enforcing a contract to which a person who is unlawfully present in the United States is a party. Section 30 of the law makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof. The Contract Clause provides that "No State shall . . . pass any . . . Law impairing the Obligation of Contracts." Sections 27 and 30 seem facially problematic, but Contract Clause challenges have rarely succeeded since the Lochner era.
For some more detail, see the Constitutional Law Prof Blog.
The Eleventh Circuit has now enjoined the enforcement of those two provisions, pending the Supreme Court's ruling later this term in a case challenging Arizona's new tough immigration law. In a previous decision (before a different panel for some reason), the Eleventh Circuit also enjoined two other provisions of the law, which do not relate to contracts.
For some more detail, see the Constitutional Law Prof Blog.
For more information on the Supreme Court case, Arizona v. United States, check out the coverage over at the SCOTUSblog. The Arizona law has a provision that makes it a misdemeanor for an undocumented immigration to apply for a job or to work in Arizona. The contracts clause claim does not appear to be part of the Arizona case, but the Supreme Court's ruling (expected this summer) will certainly provide guidance to the 11th Circuit on the question of federal preemption of state immigration laws.