Friday, July 13, 2012
An irresistible law prof favorite: a statute prohibits vehicles in the park. Can you bring in a bicycle? A stroller? Or, as I remember one of my own law profs asking, a wheel chair? Of course, the exercise was all about interpretation. We never mentioned the Americans with Disabilities Act (ADA). Here's a variation on the theme: disabled vets sue New York State Department of Environmental Conservation under ADA because the statute that does not allow "motorized vehicles" in Adirondack Park, preventing them from accessing a number of scenic lakes.
[Meredith R. Miller]
Thursday, July 12, 2012
The Wall Street Journal reported that as part of a settlement with creditors, former partners of belly-up Dewey & LeBoeuf law firm will be asked to give back amounts ranging from $25,000 to $3,000,000. This "clawback" offer doesn't seem to be an offer yet - the creditors haven't signed off on it. Maybe a better way to look at it is as an offer by the firm to the ex-partners which, if accepted, would be offered to creditors. Would it be a conditional offer? Or maybe two separate offers (firm to ex-partners and then firm to creditors?) Maybe a contract/release signed by all three groups? (most likely scenario, but I'll stop obsessing over the contract formation issues now....) The article reports that those ex-partners who fail to sign on to the plan "could end up on the hook for millions of dollars of Dewey's debt." That's a lot of billable hours.
Forest Park Pictures alleges that it created what the industry calls a "series treatment" for a television show called “Housecall,” featuring a doctor who, after being expelled from the medical community for treating patients who could not pay, moved to Malibu, California, and became a “concierge” doctor to the rich and famous. Forest Park presenting this material to USA Network (“USA”) both in writing and in a face-to-face "pitch." Below is the opening scene of Robert Altman's "The Player" illustrating what a pitch is like:
Forest Park alleges an implied agreement by USA to pay reasonable compensation if its ideas were used. Although Forest Park and USA exchanged further communications, discussions ultimately fell off with no formal agreement to produce the show.
About four years later, USA produced and aired “Royal Pains,” a television show suspciously simlar to "Housecall." Forest Park then sued USA for breach of the implied agreement. The district court granted USA’s motion to dismiss on grounds that the Copyright Act preempted the claim and that the contract was too vague to be enforced. On appeal, the Second Circuit Court of Appeals vacated and remanded.
Section 301 of the Copyright Act expressly preempts a state law claim only if (1)” the work at issue comes within the subject matter of copyright and (2) the right asserted is equivalent to any of the exclusive rights within the general scope of copyright.” However, if the state law claim includes an element that supplants or supplements the elements of a copyright infringement claim, there is no preemption. In this case, the Second Circuit found that Forest Park's claim was not preempted because it alleged that USA had promised to pay Forest Park for the use of its ideas, an element that made its claim "qualitatively different from a suit to vindicate a right included inthe Copyright Act." In addition, a copyright grants the owner exclusive rights against the world, whereas a breach of contract claim provides no exclusive rights and asserts rights only against the contractual counterparty.
The Second Circuit then moved on to consider whether Forest Park had alleged a breach of an implied-in-fact contract. California has long recognized that an implied-in-fact contract may be created where the plaintiff submits an idea that the defendant subsequently uses without compensating the plaintiff. Although USA argued that even if the parties were part of an implied-in-fact agreement, the agreement could not be enforced because it lacked a definite price term. However, California courts allow the enforcement of contracts that lack exact price terms as long as the parties’ intentions can be ascertained. Taking into account the industry custom of pitching an idea for payment, the court remanded back to the District Court, giving Forest Park a chance to prove that such an industry standard price exists and that both parties agreed to it.
We learn from Wikipedia that "Royal Pains" was renewed for its fourth season last September.
[JT and Chirstina Phillips]
Wednesday, July 11, 2012
Neil M. Browne and Katherine S. Fister, The Intriguing Potential of Postnuptial Contract Modifications, 23 Hastings Women's L.J. 187 (2012)
Tom Cummins, Shute: The Math Is Off, 8 J.L. Econ. & Pol'y 1 (2011)
Byron F. Egan, Asset Acquisitions: Assuming and Avoiding Liabilities, 116 Penn St. L. Rev. 913 (2012)
Larry T. Garvin, Globe Refining Co. v. Landa Cotton Oil Co. and the Dark Side of Reputation. 12 Nev. L.J. 659 (2012)
Charles L. Knapp, Contract Law Walks the Plank: Carnival Cruise Lines, Inc. v. Shute. 12 Nev. L.J. 553 (2012)
Cheryl B. Preston and Eli W. McCann, Unwrapping Shrinkwraps, Clickwraps, and Browsewraps: How the Law Went Wrong from Horse Traders to the Law of the Horse. 26 BYU J. Pub. L. 1 (2011)
Tuesday, July 10, 2012
What good is a contributing blog editorship if I can't use it for a little bit of self-promotion?
I've posted a draft of "Party Sophistication and Value Pluralism in Contract" to SSRN. For those of you in attendance at the annual contract law fiesta in San Diego (Thomas Jefferson) back in March, this is the paper that formed the basis of my talk (or, that was the talk that formed the basis of this paper). Here's the abstract:
In a previous article, Contract Law, Party Sophistication and the New Formalism, 75 Missouri L. Rev. 493 (2010), I documented a trend in United States case law and scholarship that fashions a dichotomy between sophisticated and unsophisticated parties. That article set out to explain the trend as a theoretical compromise between formalism and realism in the face of a renewed formalism.
However, as I noted in the previous article, the “new formalism” may not be formalism at all because it retains normative concerns. Indeed, the shift in legal thought may be more appropriately and simply characterized as embracing pluralism. This piece will place observations about party sophistication within recent scholarship discussing pluralist conceptions of contract doctrine and suggest that the focus on sophistication is a means to order contract law’s competing values (e.g., autonomy, efficiency, fairness and equality, certainty and predictability).
With reference to my previous writing on the subject, Section I of this Article addresses the increasing significance of party sophistication. The next section summarizes the argument that party sophistication preserves fairness norms in the face of a resurgence of formalism. Section III provides a brief overview of existing pluralist contracts scholarship. The Article then presents its central claim: the attention to the sophistication of contracting parties fits neatly within a theoretical shift toward pluralism and provides a way to strive for coherence and yet still order the competing values of contract law.
After addressing some case examples in Section IV, this Article concludes that, once the status-based label of “sophisticated” or “unsophisticated” is applied, the law can prioritize values. For sophisticated parties, the supervalues are autonomy and individual liberty, which leads to a rules-driven and a-contextual approach that lends itself to efficiency, predictability and certainty. For unsophisticated parties, the supervalue is a normative one of reasonableness and fairness; it is guided by a contextual and standards-based approach. This allows for a general and comprehensive body of contract law that is both principled and pragmatic, a difficult task given the wide variety of parties and transaction types that contract law serves.
Not shifting any paradigms but definitely fun to write. I welcome any feedback.
[Meredith R. Miller]
Monday, July 9, 2012
reported on Friday, Hallandale Beach made the unusual decision in 2003 to hire a private company to run its lifeguard operation. That company assigns four lifegaurds to patrol an length the size of two football fields. A company rule provides that if any of the lifeguards leaves his assigned area, he must first notify a supervisor so that his area is covered. This protects the company from liability.
But Tomas Lopez noticed a struggling swimmer, he raced to help him, leaving his area without notifying his supervisor. Two other swimmers had brought the drowning man back to shore, but Mr. Lopez helped carry him to the beach and tended to him until the paramedics arrived. He filled out his report and was fired, but Mr. Lopez had no regrets. He had not forgotten the rule; he had chosen to disregard it. Three of his colleagues quit in solidarity; two more were fired for saying they would have done what Mr. Lopez did. Mr. Lopez's employer then offered him his job back, but Mr. Lopez declined.
This leads us to wonder (as we have wondered before) how outsourcing saves governments money. Why is it cheaper to hire a company, that one presumes is trying to make a profit, to operate your lifeguard operation than it is to run that operation yourself? Private companies can be a lot more efficient than government entities in certain ways, but as the focus on liability here suggests, they also have exposures that governments don't and, as this case illustrates, there could be instances in which a private company might do the public safety/economic efficiency analysis differently from how a government, which would likely be insulated from suit by various immunity doctrines, would do it.