August 23, 2012
Update Regarding "Earth, Wind & Contract"
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]
New in Print (including some New Books)
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)
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?
August 21, 2012
Weekly Top Tens from the Social Science Research Network
In Memoriam: David Rakoff
On 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.
August 20, 2012
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).
Strike Settlement Considered a Win for Caterpillar
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.