ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Friday, January 13, 2012

Professor Craswell's Song for Rose (Sherwood v. Walker)

And here it is: the last in our series of links to Professor Richard Craswell's series of first-year contracts cases put to song.   Previous installments in the series from Professor Craswell have included his takes on Frigaliment Lumley, Wood v. Lady Duff Gordon, Alaska Packers, Parker v. Twentieth Century Fox, and Wartzman v. Hightower Productions.

We have blogged about Sherwood v. Walker before, here, here, and here.  Professor Craswell provides the following summary of the case:

Boy meets cow. Boy loses cow. Boy files an action in replevin. And now Plymouth (Michigan) takes its rightful place beside Verona (Italy) and the upper West Side (Manhattan) as the home of legendary star-crossed lovers!

Oh, all right. The actual facts of the case are more prosaic. Theodore Sherwood, who wanted to buy the cow, was the 47-year-old PRESIDENT of the local bank, who would never have considered hopping a freight train out of town. Though his motive in purchasing the cow is obscure, there was of course no evidence that his interest in the cow was anything other than financial. And the eventual outcome of the case was far happier than that portrayed here, for the pedigreed cow in question ("Rose the Second of Aberlone") went on to have at least five additional calves, whose registration papers each listed none other than Theodore Sherwood as the breeder. Still, no Hollywood or Nashville producer would have settled for the facts described above. Make the banker a penniless but romantic youth; change his interest in the cow to something more than "just good friends"; then tack on an implausible but heart-wrenching ending (and label the result "inspired by a true story") ... well, do all that, and you might just have the next big musical hit!

The rather long list of poems inspired by Rose of Aberlone begins famously wiith Brainerd Currie, "Aberlone, Rose of (Being an entry for an index)," first published in the Harvard Law School Record, Mar. 4, 1954, p. 3, and stiill widely available on various web sites. See also Alan Garfield, "Basic Assumption: A Poem Based on Sherwood v Walker," 57 SMU L. Rev. 137 (2004); and the various verses that can be found (along with much background on the case itself) in Norman Otto Stockmeyer, "To Err is Human, To Moo Bovine: The Rose of Aberlone Story," 24 T.M. Cooley L Rev 491 (2007).

 The whole series can be found here,

Thanks to Professor Craswell for sharing these songs and YouTube creations with us!


January 13, 2012 in Contract Profs, Famous Cases, Music, Teaching | Permalink | Comments (1) | TrackBack (0)

Thursday, January 12, 2012

A Song for Wartzman v Hightower Productions, Ltd

We continue our series of postings of Professor Richard Craswell's contracts songs with this number about "Woody Hightower" and his pole-sitting gambit.  Other installments in the series from Professor Craswell have included his takes on FrigalimentLumley, Wood v. Lady Duff Gordon, Alaska Packers, and Parker v. Twentieth Century Fox.

Here is Professor Craswell's summary of the case:

Hightower Productions intended to employ a singer-entertainer who would live in a specially constructed mobile flagpole perch and set a new world record for flagpole sitting. The young man selected to perform this feat would be known as "Woody Hightower," and the venture was to be publicized by having him make appearances from his perch at concerts, shopping centers and the like.

Unfortunately, Hightower Productions' lawyer (Mr Wartzman) failed to prepare the paperwork needed for the company to sell stock legally to investors. As a result, no further money could be raised (nor could "Woody" be exhibited across state lines) and the project was abandoned. Unable to prove how much its flagpole-sitting venture might have made if it had gone forward, Hightower Productions instead sued its lawyer for some $170,000 in out-of-pocket expenses, known in contract law as reliance damages.



The whole venture seems a bit daft.  In order to defeat the record set by St. Simeon Stylites, "Woody" would have had to sit atop his pole for 37 years.  "What?" you say.  "That's not what my Guinness Book of World Records says!"  Well, Mr. Guinness, meet Mr. Tennyson.  Or, if you prefer a more modern take on such religious exercises, consider Joshua Mehigan.


January 12, 2012 in Contract Profs, Famous Cases, Music, Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 11, 2012

Another Arbitration Decision from the Supreme Court

SCOTUSYesterday, the U.S. Supreme Court issued its decision in CompuCredit Corp. v. Greenwood.  In an opinion that was unsurprising according to the folks over at the ADR blog (that is, according to Sarah Cole and Paul Kirgis), SCOTUSblog provides coverage as well here.  Justice Scalia, writing for the majority, enforced an arbitration clause in a credit card agreement, reversing the Ninth Circuit, which had found the clause inconsistent with the Credit Repairs Organization Act (CROA).  Justices Kagan and Sotomayor concurred.  Only Justice Ginsburg dissented. 

The Ninth Circuit and the District Court had ruled that the arbitration clause was void because of language in CROA secuiring for consumers the "right to sue" and there are also references to class actions and to courts.  The opinion was unsurprising, according to the ADR Bloggers, because similar language has been construed in previous cases and, as Sarah Cole concludes, "Until Congress decides to make it clear that a particular statutory claim cannot be arbitrated, the Court will continue to find that statements like “right to sue” and “cause of action” cannot be construed to avoid application of the FAA."


January 11, 2012 in Recent Cases, Weblogs | Permalink | Comments (0) | TrackBack (0)

Professor Craswell on Parker v Twentieth-Century Fox Film Corp.

Here is the latest from Stanford Law's Professor Richard Craswell.  This is his take on Shirley Maclaine's suits against 20th-Century Fox, a case we have previously posted about here and (more briefly) here.  Other installments in the series from Professor Craswell have included his takes on FrigalimentLumley, Wood v. Lady Duff Gordon, and Alaska Packers.

Professor Craswell provides the following case summary:

In 1965, Twentieth-Century Fox signed Shirley Maclaine Parker to play the lead in a movie based on the Broadway musical, "Bloomer Girl." The contract guaranteed Ms Maclaine at least $750,000; it also gave her approval rights over the movie's director. However, Fox later decided not to produce "Bloomer Girl" ... and then refused to pay Maclaine the guaranteed compensation unless she played the female lead in "Big Country, Big Man", a western set in the opal mines of frontier Australia. This role had no singing or dancing, gave her no control over the director, and was to be filmed on location in Australia. 

When Maclaine turned down this role, Fox said they owed her no money because she could have avoided (or "mitigated") any financial losses by appearing in the western. The California Supreme Court famously disagreed, and ordered Fox to pay the $750,000.

For more on the history and context of this case, see Victor P. Goldberg, "Bloomer Girl Revisited, or, How to Frame an Unmade Picture," 1998 Wis. L. Rev. 1051; and Mary Joe Frug, "Re-Reading Contracts: A Feminist Analysis of a Casebook, 34 American U. L. Rev. 1065, 1114-25 (1985).



January 11, 2012 in Celebrity Contracts, Contract Profs, Famous Cases, Film, Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 10, 2012

Weekly Top Tens from the Social Science Research Network

SSRNRECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of Contracts & Commercial Law eJournal 

November 11, 2011 to January 10, 2012

RankDownloadsPaper Title
1 224 Endogenous Institutions: Law as a Coordinating Device 
Gillian HadfieldBarry R. Weingast
USC Law School and Department of Economics, Stanford University - The Hoover Institution on War, Revolution and Peace
2 158 Political Risk and Sovereign Debt Contracts 
Stephen J. ChoiG. Mitu GulatiEric A. Posner
New York University (NYU) - School of Law, Duke University - School of Law, University of Chicago - Law School
3 147 In or Out of Mortgage Trouble? A Study of Bankrupt Homeowners 
Melissa B. JacobyDaniel T. McCueEric S. Belsky
University of North Carolina (UNC) at Chapel Hill - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, Harvard University
4 114 Rome I’s Rules on Party Autonomy for Choice of Law: A U.S. Perspective 
Ronald A. Brand
University of Pittsburgh - School of Law
5 81 Theories of Contract Law and Enforcing Promissory Morality: Comments on Charles Fried 
Brian Bix
University of Minnesota Law School
6 72 The Holmesian Bad Man Flubs His Entrance 
Barbara H. Fried
Stanford Law School
7 68 Subprime Mortgages and the Case for Broadening the Duty of Good Faith 
Chunlin Leonhard
Loyola University New Orleans College of Law
8 65 Beyond the First Amendment: Shaping the Contours of Commercial Speech in Video Games, Virtual Worlds and Social Media 
Jon Garon
NKU Chase College of Law
9 59 Three Letters that Move the Markets: Credit Ratings between Market Information and Legal Regulation 
Ulrich G. Schroeter
University of Freiburg (Germany) - Faculty of Law
10 55 Consumer Protection and the Islamic Law of Contract 
Muhammad Akbar Khan
International Islamic University

RECENT HITS (for all papers announced in the last 60 days) 
TOP 10 Papers for Journal of LSN: Contracts (Topic)  

November 11, 2011 to January 10, 2012

RankDownloadsPaper Title
1 114 Rome I’s Rules on Party Autonomy for Choice of Law: A U.S. Perspective 
Ronald A. Brand
University of Pittsburgh - School of Law
2 72 The Holmesian Bad Man Flubs His Entrance 
Barbara H. Fried
Stanford Law School
3 68 Subprime Mortgages and the Case for Broadening the Duty of Good Faith 
Chunlin Leonhard
Loyola University New Orleans College of Law
4 55 Consumer Protection and the Islamic Law of Contract 
Muhammad Akbar Khan
International Islamic University
5 38 Das neue Internationale Privatrecht der Volksrepublik China: Nach den Steinen tastend den Fluss überqueren (The New Private International Law of the People's Republic of China: Crossing the River by Feeling the Stones) 
Knut Benjamin Pissler
Max Planck Institute for Comparative and International Private Law
6 36 In-House Counsel’s Role in the Structuring of Mortgage-Backed Securities 
Shaun BarnesKathleen G. CullySteven L. Schwarcz
Duke University - School of Law, Kathleen G. Cully PLLC, Duke University - School of Law
7 30 Non-State Law in the (Proposed) Hague Principles on Choice of Law in International Contracts 
Genevieve SaumierLauro Gama
McGill University - Faculty of Law, PUC-Rio
8 29 Full Harmonization in European Private Law: A Two-Track Concept 
Vanessa Mak
Tilburg University - Tilburg Law School
9 27 A Dual Approach to Contract Remedies 
Michael D. Knobler
Yale University - Law School
10 23 Interactive Contracting in Social Networks 
Mark Chen
Cornell Law Review


January 10, 2012 in Recent Scholarship | Permalink | TrackBack (0)

Report from AALS Section Meeting

AalslogoThis year's AALS Contracts section program presentations were thought-provoking and interesting - thanks to Keith Rowley, Tom Joo and Lisa Bernstein for selecting the papers and to Aditi Bagchi, Mohsen Manesh and Emmanuel Voyiakis for their presentations.

At the conclusion of the meeting, Keith Rowley stepped down as Chair (but will remain as immediate past Chair and unofficial Godfather of the Section), and Tom Joo is the new Chair, Larry Garvin the Chair-Elect, and Nancy Kim the Secretary of the section. In addition, Curtis Bridgeman, Emily Houh and Danni Kie Hart will be the new at-large Executive Committee Board members. We look forward to seeing you all at next year's meeting.

[Nancy Kim]

January 10, 2012 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Judge Posner on Contracts Issues in ATA v. FedEx

PosnerAfter a jury trial, ATA Airlines (ATA) won a nearly $66 million verdict against Federal Express Corporation (FedEx).  FedEx appealed that ruling to the 7th Circuit, and ATA filed a cross-appeal on its promissory estoppel claim in the event that FedEx should succeed on its appeal.  The appeal was decided by Chief Judge Easterbrook, along with Judges Posner (picutured) and Wood.  Judge Posner's opinion for the court can be found here.  

The facts of the case are pretty complicated.  FedEx is a team leader in the Civil Reserve Air Fleet program.  That means that in the event of a national emergency, it and its junior team members, which icludes ATA, have agreed to make a certain number of aircraft for use by the Department of Defense.  In return to this pledge, team members are assigned points that permit them to bid to provide non-emergency services to the government.  It turns out, the little guys are more interested in these opportunities than are large carriers like FedEx, and they are willing to pay for the points, which are transferable within a team.  The FedEx team earned $600 million a year providing non-emergency services to the government.

The agreements that created the team are also complicated.  The contract at issue here was not really a contract at all but more of an agreement in principle about how the parties would divide up the non-emergency service contracts for the years 2007-2009.  Because the parties could not know in advance what the government’s non-emergency needs would be, it could not know which of the air carriers would have the ability to meet those needs. Nonetheless, the parties agreed in principle to a 50/50 division of the work between ATA and another small carrier, Omni.  But the following year, some of ATA’s work was siphoned off to Northwest Airlines, and then following Delta’s acquisition of Northwest, ATA was replaced on the team with Delta.  In 2008, upon receiving notice that it would be replaced by Delta in 2009, ATA withdrew from the team and filed for bankruptcy, lacking sufficient non-government business to keep itself aloft.

The district court treated this agreement as an enforceable contract, but the 7th Circuit disagreed.  Even if a court could somehow fill in terms relating to the various contingencies regarding the government’s needs and how those needs would be met, Judge Posner noted, the agreement had no price term relating to FedEx’s compensation for serving as team leader.  That price had varied from 4.5% to 7%, and there was no set of facts or trade usage available which could provide a basis for a court-supplied price term.

In the alternative, ATA argued that it relied on FedEx’s promise to give it 50% of the non-emergency business and was thus entitled to $28 million in reliance damages incurred in purchasing aircraft need to provide non-emergency services to the government.  The district court had found this claim to be preempted under the Airline Deregulation Act.  The 7th Circuit disagreed, but rejected ATA’s promissory estoppel claim on the merits, since it was not reasonable for ATA to rely on a conditional promise and FedEx could not have expected such reliance based on its non-promise.

“So,” Judge Posner, concludes on page 13 of the opinion, “ATA loses.”  There follows another 15 pages about expert testimony and regression analyses which, happily, are not our concern.  In sum though, Judge Posner was not impressed with ATA's expert.  His conclusion:

Morriss’s regression had as many bloody wounds as Julius Caesar when he was stabbed 23 times by the Roman Senators led by Brutus.


The district judge does not escape without a bloody wound or two:

We have gone on at such length about the deficiencies of the regression analysis in order to remind district judges that, painful as it may be, it is their responsibility to screen expert testimony, however technical; we have suggested aids to the discharge of that responsibility. The responsibility is especially great in a jury trial, since jurors on average have an even lower comfort level with technical evidence than judges. The examination and cross- examination of Morriss were perfunctory and must have struck most, maybe all, of the jurors as gibberish.

Beware the Feast Day of Trophimus of Arles



January 10, 2012 in Government Contracting, Recent Cases, Travel | Permalink | Comments (0) | TrackBack (0)

Monday, January 9, 2012

Professor Craswell on Alaska Packers

Continuing our series of posts on Professor Richard Craswell's first-year contracts course in song.  Previous installments have included Professor Craswell takes on FrigalimentLumley, and Wood v. Lady Duff Gordon.  Today, we present this little ditty about Alaska Packers v. Domenico, a case we have posted about previously here and here. Professor Craswell's summar is provided below:

In 1902, some inexperienced sailors (many of them Italian immigrants) signed a contract to work the gill nets in Pyramid Harbor, Alaska, for the Alaskan Packer's Association, a cartel made up of most of Alaska's canneries. The sailors' pay was to be determined partly by the size of their catch, at a rate of 2¢ per fish. When they arrived in Alaska, however, some of the sailors complained that the nets were inadequate and threatened to strike. They returned to work only when the cannery promised them higher wages -- a promise the cannery later refused to keep.

The Goetz & Scott article referred to in the song is Charles J. Goetz & Robert E. Scott, "Principles of Relational Contracts," 67 Va. L. Rev. 1089 (1981). For the history of this case in particular, and of the Alaska canning business generally, see Deborah L. Threedy, "A Fish Story: Alaska Packer's Association v Domenico," 2000 Utah L. Rev. 185 (2000). There is also a well-made video ("Sockeye and the Age of Sail -- The Story of the Alaska Packer's Association") that can be found here:



January 9, 2012 in Contract Profs, Famous Cases, Labor Contracts, Recent Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

ScarJo's Mother and Express Conditions

ScarlettI will be teaching express conditions in a few weeks and found a case that I hope will liven up discussion a bit.  The casebook I use relies in part on Luttinger v. Rosen to illustrate the condition precedent concept.  In Luttinger, the plaintiff buyers sought the return of their deposit on a home purchase.  The sale contract was “conditional upon the buyers obtaining…mortgage financing…for a term not less than twenty years and at an interest rate which does not exceed 8 ½ %.”  Because the Buyers could not obtain a mortgage on those terms (the closest they got was 8 ¾ %), they successfully argued that the condition was not satisfied.  In the modern TMZ-worthy version of this kind of dispute, the Luttingers are “played by” Scarlett Johannson’s mother, Melanie Sloan, who is seeking return of her $130,000 deposit on a Manhattan apartment purchase.  Ms. Sloan, like the Luttingers, argues that her inability to obtain financing (allegedly due to her daughter’s recent firing of her as her agent) amounts to the non-occurrence of a condition precedent.  As a result, the now financially-strapped Ms. Sloan believes she no longer is obligated to purchase the apartment.  Unnamed and unreal sources claim that she plans to buy a zoo instead. 

[Heidi R. Anderson]


January 9, 2012 in Celebrity Contracts, In the News, Teaching | Permalink | Comments (0) | TrackBack (0)

Another Reminder

Okay folks, you are back from the AALS conference now and all jazzed about the latest contracts scholarship: let your voices be heard!

The polls remain open for the remainder of the month for the first annual ContractsProf Blog prize for the best contracts law article of the year, to be awarded at the Spring Contracts Conference .  That conference will oe be held at the Thomas Jefferson School of Law in San Diego in March.  The winner will receive a cash prize!

Vote (once only, folks) by sending an e-mail with your favorite contracts law review article from the list below to  If your favorite article is not on the list, you may nominate (and/or vote for) an article that is not on this list through the same e-mail address.

The list of entries can be found here.



January 9, 2012 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Details for the Spring Contracts Conference . . .

The 7th Annual International Conference on Contracts will be hosted by the Thomas Jefferson School of Law in its new state of the art facility in San Diego California on March 2nd & 3rd 2012.

San Diego

In the fine tradition of previous conferences held at Stetson, UNLV, McGeorge, South Texas, Texas Wesleyan and Gloucester, England, this conference will provide scholars and teachers at all experience levels the opportunity to present, discuss and receive feedback on a wide spectrum of scholarship. Articles recently published, articles-accepted-but-not-yet-published, works-in-progress, not yet fully formed ideas for scholarship or pedagogical innovations are welcome. The conference also provides an eagerly anticipated annual opportunity to network with colleagues, potential collaborators and mentors from the U.S. and around the globe.

Further details about registration and hotel researations re now available here.


January 9, 2012 in Conferences | Permalink | TrackBack (0)