ContractsProf Blog

Editor: D. A. Jeremy Telman
Valparaiso Univ. Law School

A Member of the Law Professor Blogs Network

Thursday, August 23, 2012

Update Regarding "Earth, Wind & Contract"

Ewf

In March, we briefly mentioned a contract-based royalty payment dispute between one member of the disco group Earth, Wind and Fire, and the children of a deceased member of the group.  According to this story, the defendant, Maurice White, now has responded in court.  (It is unclear whether White's response was an answer to the complaint, a motion for summary judgment, or something else).  White alleges that there was no oral agreement pursuant to which he was to pay royalties and that, if there was an oral agreement, it is not enforceable.  This could end up being a good case to discuss when presenting the statute of frauds.  Expect another post if/when I am able to find the court filings.

[Heidi R. Anderson]

August 23, 2012 in Celebrity Contracts, Current Affairs, Teaching | Permalink | TrackBack (0)

New in Print (including some New Books)

Pile of BooksDaniel Friedmann, Does the Dead Contract Rule Restitution from Its Grave? 92 B.U. L. Rev. 811 (2012) 

Steven J. Koprince, The Small Business Guide to Government Contracts: How to Comply with the Key Rules and Regulations . . . and Avoid Terminated Agreements, Fines or Worse (AMACOM 2012)

Timothy E. Lynch, Gambling by Another Name; The Challenge of Purely Speculative Derivatives, 17 Stan. J.L. Bus. & Fin. 67 (2011)

George J. Siedel, The Double Liar Dilemma in Business Negotiations. 17 Stan. J.L. Bus. & Fin. 1 (2011)

Bill Seiter and Ellen Seiter, The Creative Artist's Legal Guide: Copyright, Trademark and Contracts in Film and Digital Media Production (Yale UP 2012)

[JT]

August 23, 2012 in Recent Scholarship | Permalink | TrackBack (0)

Wednesday, August 22, 2012

Cigarette Packaging and - Contracts?

Last week, the Australian High Court upheld a ban on company logos on cigarette packages. The law that was upheld also requires that the front of cigarette packages show images of the harmful effects of smoking (e.g. mouth ulcers, tumors, etc).

Okay, you might be wondering what this has to do with contracts.  One of my current research interests (obsessions) is the idea of notice substituting for actual assent, especially with online contracts. A dinky hyperlink nestled at the bottom of a page can serve as "notice," at least in the eyes of some courts although most people don't actually notice them.  The fuss over the cigarette packaging (and Big Tobacco really fought hard over this one) underscores something that is often lost on courts evaluating notice in contract cases -- the quality of the notice matters. A warning label in a small text box gets ignored; graphic visual depictions of injured human organs do not. Snazzy corporate labels make smoking seem cool; plain labels don't have that same cachet. Websites, too, could draw more attention to their contracts, but they don't. They certainly know how to grab our attention when they want it, with images and sounds. So why make legal terms so unobtrusive?  Could it be that they don't really want us to read them?

[Nancy Kim]

August 22, 2012 in In the News, Legislation, Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 21, 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 

June 21, 2012 to August 20, 2012

RankDownloadsPaper Title
1 1302 A Transactional Genealogy of Scandal: From Michael Milken to Enron to Goldman Sachs 
William W. BrattonAdam J. Levitin
University of Pennsylvania - Law School, Georgetown University - Law Center
2 197 The Optional Instrument of European Contract Law: Opting-in through Standard Terms – A Reply to Simon Whittaker 
Jürgen Basedow
Max Planck Institute for Comparative and International Private Law
3 164 You Definitely Should Have: A Contractual Look at Israeli Wedding Gift Culture 
Zvi H. Triger
Striks School of Law, The College of Management Academic Studies (COLMAN)
4 150 What Can Be Wrong with an Option? An Optional Common European Sales Law as a Regulatory Tool 
Horst Eidenmueller
University of Munich
5 132 Featuring People in Ads 
Eric GoldmanRebecca Tushnet
Santa Clara University - School of Law, Georgetown University - Law Center
6 132 The Dynamics of Contract Evolution 
Stephen J. ChoiG. Mitu GulatiEric A. Posner
New York University (NYU) - School of Law, Duke University - School of Law, University of Chicago - Law Schoo
7 122 Hollywood Deals: Soft Contracts for Hard Markets 
Jonathan Barnett
USC Gould School of Law
8 102 Affirmatively Inefficient Jurisprudence?: Confusing Contractors’ Rights to Raise Affirmative Defenses with Sovereign Immunity 
Steven L. SchoonerPamela Kovacs
George Washington University - Law School, George Washington University - Law School
9 99 Contract and Innovation: The Limited Role of Generalist Courts in the Evolution of Novel Contractual Terms 
Ronald J. GilsonCharles F. SabelRobert E. Scott
Stanford Law School, Columbia University - Law School, Columbia University - Law School
10 96 Law and the Stable Self 
Rebecca E. Hollander-Blumoff
Washington University in Saint Louis - School of Law

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

June 21, 2012 to August 20, 2012

RankDownloadsPaper Title
1 197 The Optional Instrument of European Contract Law: Opting-in through Standard Terms – A Reply to Simon Whittaker 
Jürgen Basedow
Max Planck Institute for Comparative and International Private Law
2 164 You Definitely Should Have: A Contractual Look at Israeli Wedding Gift Culture 
Zvi H. Triger
Striks School of Law, The College of Management Academic Studies (COLMAN)
3 150 What Can Be Wrong with an Option? An Optional Common European Sales Law as a Regulatory Tool 
Horst Eidenmueller
University of Munich
4 122 Hollywood Deals: Soft Contracts for Hard Markets 
Jonathan Barnett
USC Gould School of Law 
5 96 Law and the Stable Self 
Rebecca E. Hollander-Blumoff
Washington University in Saint Louis - School of Law
6 81 Autonomy, Pluralism, and Contract Theory 
Hanoch Dagan
Tel Aviv University - Buchmann Faculty of Law
7 73 The Return-Reducing Ripple Effects of the 'Carried Interest' Tax Proposals 
Heather M. Field
University of California - Hastings College of the Law
8 70 The Importance of Fault in Contract Law 
Robert A. Hillman
Cornell Law School
9 69 Reflections on the Two-Handed Lawyer: Thinking versus Action in Business Lawyering 
Jeffrey M. Lipshaw
Suffolk University - Law School
10 53 The Renegotiating Clause in Petroleum International Joint Venture Agreements 
Talal Abdulla Al-Emadi
University of Qatar

[JT]

August 21, 2012 in Recent Scholarship | Permalink | TrackBack (0)

In Memoriam: David Rakoff

David_rakoff_2006On August 9th, 2012, David Rakoff died of cancer.  David and I went to college together.  We had two things in common: before college, we had both belonged to the same socialist zionist youth group, and we both danced.  Since college, we stayed in touch a bit, because David was a very generous person, but he was out of my league, and we both knew it (although only I would say it).  David was probably the most creative person I ever knew.  

David was incredibly good at so many things.  He made things all the time.  I still remember vividly the characters he created for our college's variety show circa 1984: the Neanderthal, bone-through-the-nose ladies' man who runs into some toughs from the Male Feminist League; the director of Cliffs' Notes music videos, all of whose productions involve columns and leather-clad women with odd markings all over their bodies dancing erotically; and of course the lead in his short, 16mm spoof of French New Wave cinema, Pain D'Amour, in which he falls in love with a baguette.  That was thirty years ago.  I've seen so much theater since then, and so little has stayed with me as David's work has done.  

But he was creative in very basic ways.  One evening, three of us were trying to figure out what to do for dinner.  We went into our friend's kitchen and catalogued the food in her refrigerator and cupboards.  While I mentally reviewed my list of affordable restaurants within walking distance, David gleefully rattled off the useful ingredients he had come across, "Et voilà!".  I could think of no way that the named ingredients could be combined to make something edible, so I asked, "We put all those together, and what do we have?"  "Dinner!" David exclaimed.  It turned out to be a quiche, and it was delicious.  I didn't know it was possible to just make one of those.  Forgive me, I was 20, but David was 19.

Around the same time, David made me a hand-painted birthday card that was also a sort of portrait. The card congratulated me at the beginning of my third decade.  I had to get out a calculator to figure out how I could be entering my third decade at the age of 20.  David accompanied me when I cut off my pony tail.  He kept the hair to use for paintbrushes, or so he said.  I hope he wasn't fibbing.

Although I have all these intimate memories of David, I probably never counted as one of his closest friends.  But who knows?  I think David was still coming to grips with the consequences of his homosexuality in the age of AIDS when we knew each other.   As a result, there were parts of his private life that were closed off to me in that unenlightened era.  David wrote about how he never really formed close attachments to people.  I think his line is "loved by everybody; beloved by none."  If you go to David's Facebook page, you'll see that there are probably hundreds of people who can share memories of David similar to mine in their fondness and intimacy.  If he wasn't capable of true compassion, he did a damn good job of faking it.  For all of his argumentative skills, David succeeded in convincing only himself that he was anything but a mensch.

Although his short film, The New Tenants won an Academy Award, David moved on from film and acting to writing.  He wrote three books, and I learned on Saturday from This American Life, that a novel in verse is forthcoming.  A novel in verse!  

But wait, there is a contracts hook here.  Here is a link to a hilarious contract that David wrote and read for another episode of This American Life.  

David's life was far too short, but he lived it very, very well.

[Jeremy Telman]

August 21, 2012 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Monday, August 20, 2012

TOS Grading

An article posted on TechCrunch, available here, discussed a new site which reviews terms of service (TOS) of various websites. The site provides a "grade" for website policies and can be accessed here (btw, it is looking for people to get involved).

[Nancy Kim]

August 20, 2012 in Miscellaneous, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Strike Settlement Considered a Win for Caterpillar

Strike
"Strike" from the National Museum in Warsaw, Poland

As reported in Saturday's New York Times, 780 members of the International Association of Machinists ended their fifteen-week strike when, against the recommendation of union leaders, the workers voted to ratify a six-year contract that contained almost all of the concessions that Caterpillar demanded.  

The contract that the Caterpillare offered included a six-year wage freeze for workers hired before May 2005, a move that Caterpillar justified by claiming that its senior workers were being paid above market levels.  At the time Caterpillar made this pooposal, it was reporting record profits.  

The workers were losing a war of attrition.  105 workers had alredy crossed the picket line and returned to work and no concessions were in sight.  In addition to the pay freeze, the workers agreed to a pension freeze for the same group of senior workers and an increase in employee contributions for health care.  They were able to get Caterpillar to increases the "ratification bonus" form $1000 to $3100.  Caterpillar also agreed to a single 3% increase for workers hired after 2005 at the end of this year.  Finally, workers won a concession on the reasignment of workers, regardless of seniority.  Caterpillar wanted to be able to assign workers to new jobs indefinitely, regardless of seniority.  Under the new agreement, they may do so for a maximum of 90 days.  k

The senior workers subject to the pay freeze earn, on the average, $26/hour, which comes out to about $50,000/year gross, plus overtime.  Caterpillar reported profits of $4.9 billion last year and expects earnings to be stronger still in 2012.  Its chief executive, Douglas R. Oberhelman, increased by 60 percent in 2011 to $16.9 million.  That means his raise was about $8000 per striking worker.  

[JT]

August 20, 2012 in In the News, Labor Contracts | Permalink | Comments (0) | TrackBack (0)