Thursday, November 15, 2012
[When we learned that SCOTUS had granted cert. in this case, since David Horton (pictured) has guest blogged for us before, repeatedly, we threatened to hold him hostage until we could complete our science fiction fanstasy movie called Argo unless he could supply a post on the case. Beacuse of the following post, it looks like the film will never be made. Can someone get John Goodman and Alan Arkin out of our blog offices?]
Jeremy has kindly asked me to say a few words about the U.S. Supreme Court’s cert grant in American Express Co. v. Italian Colors Restaurant, No. 12-133, 2012 WL 3096737 (U.S. Nov. 9, 2012) (“Amex”). For years, scholars like Jean Sternlight and Myriam E. Gilles have warned that the Court’s expansive interpretation of the Federal Arbitration Act (“FAA”) will kill off the consumer and employment class action. Amex may drive the final nail into this coffin. In fact, as I’ll explain, the case has the potential to sweep even further.
As many readers of this blog know, Amex comes hot on the heels of AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011). Before Concepcion, courts routinely held that class arbitration waivers were unconscionable when applied to numerous, low value, state law claims. The idea was that these small-dollar grievances—which usually invoked state consumer protection statutes—would either be pursued as a class action or not at all. However, Concepcion (arguably) held that section 2 of the FAA preempts this line of authority. (I say “arguably” because Concepcion’s precise holding remains contested, and to plug my forthcoming article, which urges courts to read Concepcion narrowly). Justice Scalia’s majority opinion reasoned that using the unconscionability doctrine to mandate class arbitration—which is slower and more formal than two-party arbitration—violated the FAA’s purposes and objectives. Justice Scalia then dismissed concerns about deterring small claims by declaring that “[s]tates cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.”
Yet the unconscionability defense wasn’t the only tool that judges employed to invalidate class arbitration waivers. In Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 90 (2000), the Court suggested (but did not hold) that plaintiffs don’t have to arbitrate if they prove that they can’t effectively vindicate their federal statutory rights in the arbitral forum. Specifically, the Court cited high arbitral costs as a reason to strike down an arbitration clause for thwarting federal statutory rights. Since then, many lower courts have applied the vindication of rights doctrine to nullify class arbitration waivers in situations where individual lawsuits are cost-prohibitive. Because Concepcion dealt with state unconscionability principles and section 2 preemption, its effect on the vindication of rights doctrine—a matter of federal common law—is unclear.
Amex falls into this gap. The plaintiffs, a group of merchants and a trade association, claim that American Express violated the Sherman and Clayton Acts. Although the parties’ agreements contain a class arbitration waiver, the plaintiffs claim that the expense of proving their allegations (between several hundred thousand and a million dollars) dwarfs any individual’s potential recovery (a maximum of $38,000, even if trebled under the antitrust statutes). Thus, the Court (minus Justice Sotomayor, who sat on a Second Circuit panel that considered an earlier iteration of the case) will decide whether Concepcion’s rhetoric about the evils of class arbitration extends to negative-value federal statutory claims.
From reading the petition for certiorari—which was supported by amicus briefs from the usual defense-side suspects—it seems that the vindication of rights doctrine itself will come under fire. Of course, it’s unlikely to be the flagship argument. I think American Express et al. will first try to stretch Concepcion as far as possible and then distinguish the plaintiff’s costs (which are mostly expert fees) from other vindication of rights holdings (which tend to involve expenses that wouldn’t normally be incurred in litigation, such as arbitrator’s fees). But at least some of the briefs are already challenging Green Tree as dicta. If the Court takes the bait and throttles back on the vindication of rights doctrine, it would affect the entire sprawling institution of arbitration—not just class actions. Even plaintiffs with righteous, non-class claims under important federal statutes wouldn’t be able to challenge egregious arbitration clauses under federal law. (To be sure, the unconscionability defense might still prune away the worst provisions, but it (1) is notoriously unreliable and (2) also hangs by a thread in the arbitration arena). Thus, Amex could be another large step toward a proposition that the Court seems increasingly willing to embrace: claims must be sent to arbitration even if they can’t or won’t be arbitrated.
[Posted on David's behalf, by JT]
Monday, November 5, 2012
This week we have a guest blogger, Chris Osborn (pictured), a relative newcomer to the world of contracts profs, but already setting cases to Limericks. Below is Chris's summary of Hooters of America v. Phillips, 173 F.3d 933 (4th Cir. 1999).
In Phillips, a waitress employed at a Hooters restaurant in Myrtle Beach, SC reported to her manager that she had been sexually harassed by the local franchise owner’s brother. Ms. Phillips claimed that the manager responded that she should “let it go,” whereupon she resigned and retained counsel. When her attorney contacted the franchisor, Hooters of America, Inc. (Hooters), and gave notice of the claim, Hooters invoked an arbitration clause in an employment agreement that the claimant had signed several years after she was hired. Hooters then filed a declaratory judgment action in federal district court and a motion to enjoin the plaintiff from filing suit (which was treated as a motion to compel arbitration).
In opposing the motion, Ms. Phillips contended that the arbitration clause was not entered knowingly and voluntarily, was unconscionable, and was not supported by consideration. The U.S. District Court for the District of South Carolina found the arbitration clause unenforceable, holding inter alia that since the clause was not contained in her initial employment contract, it had to be supported by some additional consideration. The court then examined the mutual promise to arbitrate unenforceable. In particular, the court found that the arbitration Rules & Procedures bound the employee but gave the employer alone the right to terminate the agreement to arbitrate at any time on 30 days’ notice. Moreover, the Rules and Procedures also held the employer to significantly less onerous pleading, discovery, and trial procedures. Accordingly, the court ruled that Hooters’ promise to arbitrate was illusory (which makes it reminiscent of another case recently reduced to a Limerick, Vassilkovska), and thus it could not serve as consideration for the employee’s promise to submit her claims to arbitration.
The Fourth Circuit affirmed.
Here are the (three!) Limericks:
When Miss Phillips, crying conduct discriminatory
Sought redress for her boss’ tomfoolery
Her employer said, “Wait,
You made a promise to arbitrate!”
But the court ruled the whole thing illusory.
“When harassed on the job (wouldn’t ya know?)
A young Hooter’s girl could not “let it go….”
When the restaurant stalled,
The court was appalled
“Was there any consideration here? No. “
When a harassed young waitress brought suit
Her employer did not give a hoot
It tried to stay litigation
And demand arbitration
But the court ruled the sham clause was moot.
Monday, October 22, 2012
Last week, the Concurring Opinions blog hosted an online symposium on Larry Cunningham's new book Contracts in the Real World: Stories of Popular Contracts and Why They Matter. An introduction to the symposium can be found here. With the permission of the authors, we are cross-posting the commentaries here. Here is a listing of the posts:
Miriam Cherry, Post I
Miriam Cherry, Post II
Miriam Cherry, Post III
Ronald K.L. Collins
Larry Cunningham, Post I
Larry Cunningham, Post II
Larry Cunningham, Post III
Susan Schwab Heyman
Law Student Umo Ironbar
Donald C. Langevoort
Jennifer S. Taub
Those of you in the teaching world, we hope that you will have a look at Larry's book and give serious consideration to the possibility of adopting it for your courses or recommending it to your students. To our student readers, this is a really fun book that will enhance your enjoyment of and appreciation of the law of contracts.
The following post is cross-posted from an online symposium that previously appeared on Concurring Opnions. The original post can be found here.
The title of Larry’s new book is Contracts in the Real World. Intentionally or not, the title suggests that there may exist another realm for contracts other than the real world, a realm that is perhaps more theoretical and not completely real. The alternate universe that most readily comes to mind is law school. Contracts in the real world exist in partial contrast to contracts in law school.
Contracts in the real world bind parties and counterparties to one another. Contracts in law school bind students to casebooks and laptops. Contracts in the real world frequently revolve around compensation, obligations, and duties. Contracts in law school frequently revolve around precedents, arguments, and defenses. Contracts in the real world are about contracts. Contracts in law school are about cases about contracts. Needless to say more, there exists a meaningful and significant gulf between contracts in the real world and contracts in law school.
Larry’s book serves a bridge across this gulf. Through wide-ranging popular stories about the prominent and the pedestrian crafted in accessible language yet not devoid of legal doctrine, the book connects contracts in law school with contracts in the real world. Law school concepts like offer, acceptance, mitigation, and assignment are illuminated by real world stories of popular contracts involving Pepsi ads, Dateline NBC, Redskins tickets, and Haagen-Dazs ice cream.
The conceptual meditations of contract scholars like Cardozo, Corbin, and Williston are expressed and explained in contract controversies involving well-known figures such as Michael Jordan, Maya Angelou, and Lady Gaga, and through common experiences like purchasing lottery tickets, signing mobile phone agreements, and buying football tickets online. Given the accessible language and popular stories, it is easy for the reader to be lulled into forgetting that they are reading and learning about the law, much in the same way that Tom Sawyer lulled his friends into whitewashing a fence by making it seem more like a treat than a chore.
Through stories, common and classic, Larry reminds us that contracts are not pacts chiseled in stone that bind parties to one another in an empty, static, and monochromatic world without regard for reason or sense. Rather, contracts are dynamic communions between parties that exist in a colorful world filled with complications, change, and consequence. This means that contracts manifest agreements that are frequently honored as intended, but it also means that contracts are sometimes modified, breached, and enforced against another’s preferences because these agreements exist in a dynamic world.
Throughout the book, Larry advocates for a thoughtful, balanced view of contract law; this balanced view departs from heedless, extreme views of contract law based on rigid and impractical notions of freedom of contracts or social justice that frequently find root in irreconcilable moral, political perspectives. Likewise, contracts in law school and contracts in the real world should strive to find what Larry calls a “sensible center.”
Scholars, students, and practitioners of contract law can all greatly benefit from finding this balanced core as well because contract law is perhaps most enjoyable, most thoughtful, and most useful, when theory and pedagogy meets experience and practice, when there is a meeting of the minds between contracts in law school and contracts in the real world.
Larry’s book is a much welcomed addition to the literature on contract law. It will be enjoyed by many who deal with contract law, be it in law school, the real world, or somewhere in between.
[Posted by JT]
Thursday, July 19, 2012
I've just returned from a semester in New Zealand, teaching an advanced contracts course at the beautiful Victoria University of Wellington. One of the best things about teaching at the law school was having David McLauchlan as a colleague. As many contracts profs know, David is an impressive and prolific contracts scholar and a highly respected expert on contract law. Some of his writings can be found here. During my visit, I had the privilege of hearing David present a paper with the intriguing title, “The Contract That Neither Party Intends.” In his paper, he tackles the issues of interpretation and responded to a recent New Zealand case which endorsed our very own Holmes' strict views regarding the objective approach to contract formation and interpretation. Professor McLauchlan offers several compelling reasons why that view should be rejected in favor of (also our very own) Corbin’s less stringent version of objectivity. The paper is a spirited discussion of interpretation issues ("promisee objectivity" v. "detached objectivity" aka "fly on the wall" theory) and discusses cases that are classics in American casebooks (such as the Peerless case) as well as New Zealand and Australian cases that may be unfamiliar to U.S. contracts profs. It goes to show that while contract law may be local, contract law issues are universal.
Tuesday, July 3, 2012
We are always delighted to post contributions from Contracts Profs not currently associated with the blog. Today we are pleased to introduce Moshe Gelbard, whose work may be familiar to some of our readers because of his presentations at the annual Contracts Law spring conferences.
Professor Gelbard teaches at the Netanya Academic College, where he is a Senior Lecturer in the School of Law. This past Spring Semster, he was a Visiting Professor at Touro College's Jacob D. Fuchsberg Law Center. He has two publications forthcoming in U.S. Law Reviews. His co-authored piece with David Elkins, The Remedy of Price Reduction in Mixed Legal Systems, is forthcoming in the Stetson Law Review, and his Pre-dispute Arbitration Clauses in Consumer Contracts, is forthcoming in the Touro Law Review.
His guest post will appear later today.
Thursday, May 31, 2012
Barbara A. Atwood, Marital Contracts and the Meaning of Marriage, 54 Ariz. L. Rev. 11 (2012)
Robert Luther, III, The Business of "Procuring Cause" in Virginia. 3 Wm. & Mary Bus. L. Rev. 181 (2012)
Nicolas Suzor, Order Supported by Law: the Enforcement of Rules in Online Communities, 63 Mercer L. Rev. 523 (2012)
The volume of the Arizona Law Review containing Barbara Atwood's article on marital contracts also contains a very fine tribute to Professor Atwood (pictured) on the occasion of her retirement. I don't think I ever crossed paths with Professor Atwood, and Professor Massaro's tribute makes me regret that. Fortunately, it is not too late, since retirement from teaching can provide great opportunities for continued involvement in the intellectual community.
Tuesday, April 17, 2012
This blog reflects the thoughts of Frank Snyder, a law professor and former Big Law partner, on the massive changes that law schools and the legal profession are facing in the decades ahead, and on the larger role of lawyers in society. Plus some other things, from time to time.
And here's what Frank has to say about Frank and his views:
I'm a law professor who has taught at law schools in each quartile of the USNews rankings, been a partner at an AmLaw 20 firm, and owned a couple of independent mionor league baseball teams.
You can find my current school on a Google search, but I'm not putting it here because I want to emphasize that this blog reflects my personal observations on legal education, the profession of law, and the vast changes (the "Apocalypse") that are looming on the horizon for each. I claim no special expertise in these topics, except for having practiced law for nearly 15 years and taught in law schools nearly as long.
Unlike some other critics, I believe that the law is the greatest of the secular professions It has played a critical role in American life. Law school is not a scam. Law has offered, and continues to offer, incredibly rewarding careers to thousands of new lawyers. My view of the American law school is like that of reforming 15th-century Catholics to abuses in the Church -- a deep love for an institution but a strong concern that it has fallen under some very bad influences.
Unless attributed and linked to specific others, all of the thoughts here are mine, unless I unconsciously stole them, in which case I apologize. None of them should be taken as the opinions of my employer, my publishers, my students, or any other person or institution
As always, we wish Frank all the best in this new venture.
Thursday, March 15, 2012
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.”
Friday, March 2, 2012
Keith Rowley has put together a panel consisting of Shawn Bayern, Omri Ben-Shahar, and Mark Gergen to honor Melvin Eisenberg, who is the fourth honoree for Lifetime Achievement at the Spring Contracts Conference.
Professor Bayern stressed Professor Eisenberg's fundamental refusal to reduce contracts law to any one unifying principle. Law must be justified by relevant social propositions: including morality, policy and experiential propositions. Not meaning to criticize theorists who view contracts as promise, or as plan, etc., Professor Beyern regards such views as undoubtedly useful but incomplete when considered from the perspective of Professor Eisenberg's appreciation of contracts as contracts. In addition, Professor Bayern highlighted Professor Eisenberg's contributions to and critiques of the field of law and economics. Professor Bayern notes that Professor Eisenberg's work is often not categorized under the rubric as law and economics because although Eisenberg utilizes economic theory, he reaches conclusions that are not usually associated with law and economics. But Professor Bayern challenges more traditional L&E types to attempt to refute any of Professor Eisenberg's arguments, which he (Professor Bayern) summarized as showing that, while economic models might make sense in the abstract world of rational actors, they do not help us understand the real world of contractual relations.
Omri Ben Shahar again stressed Mel Eisenberg's contributions in the realm of law and economics, recognizing Eisenberg as law and economics pioneer. Eisenberg's approach to L&E enables economic analysis to improve in resolution. Because Eisenberg focuses not on generating new theoretical models but on applying them in concrete situations, he can test and refine economic models and help them achieve greater clarity and specificity. Professor Ben Shahar elaborated on Professor Eisenberg's substantive contributions in refining our understandings of disgorgement, the bargain theory of consideration and procedural unconscionability doctrine.
Mark Gergen celebrated Mel Eisenberg as the best exemplar of his generation of the great pragmatic tradition in contracts scholarship. Professor Gergen illustrated this by comparing and contrasting Professor Eisenberg's work with that of last year's honoree, Stewart Macauley. After noting the extent of overlap between the two scholars, Professor Gergen identified the key distinction that Mel Eisenberg more clearly sees the limitations of contracts doctrine. Contracts may be about relationships, but it cannot repair such relationships when they are broken. There may be damages, but often the parties just must go their separate ways. Professor Gergen also contrasted Mel Eisenberg's work with that of another giant of Mel's generation of conracts scholars, Professor Robert Scott, especially in their estimation of the value of litigation and their faith in courts.
Ultimately, all agreed that Mel Eisenberg's scholarship defies easy categorization but is always characterized by lucidity, clarity and persuasiveness. The pleasure of reading Mel Eisenberg's scholarship is that you always learn by reading him and emerge either persuaded or knowing, because of the clarity of Eisenberg's writing and his transparency in identifying his assumptions, exactly why you disagree.
As expected, Professor Eisenberg was gracious in his remarks, noting that he is currently at work on a book on contracts, and indicating that there is still some "open texture" in his work that he can work on with the help of the comments he received on his work.
Friday, February 17, 2012
The ABA Journal reports that The Cheesecake Factory will begin posting drink prices in Massachusetts after a lawyer threatened suit. According to the article, the lawyer "threatened to sue under the Massachusetts Consumer Protection Act on behalf of a friend who was charged $11 for a margarita at a Cheesecake Factory in Chestnut Hill. The price was not on the menu and the server was only able to provide a range of drink costs."
The ABA Journal looks to our very own founder, Franklin Snyder, for guidance. Previously, Frank had commented in a New York Times column about Nello. This Manhattan restaurant has (had?) a practice of not mentioning the price of a white truffle pasta lunch special. This practice shocked a recent diner when he turned over a bill charging $275 for the dish. To the New York Times, Snyder commented:
“You might be interested in letting your readers know that a restaurant meal is a ‘sale of goods’ under Article 2 of the Uniform Commercial Code,” he wrote. “The code provides that where the buyer and seller have agreed to a contract but have not agreed on the price, the price is not what the seller subsequently demands. It’s a reasonable price for the goods at issue. Thus a customer has no obligation to pay for anything more than the reasonable price of a pasta meal at a trendy restaurant.”
He continued: “In this circumstance, a customer should make a reasonable offer for the value of the meal, then walk out and wait to be sued for breach of contract. Be sure to leave the restaurant full contact information so they can’t claim that you’re trying to steal something.”
Thanks for the tip, Frank! I'm heading over to Nello for the truffle pasta dish. I hope there isn't a price listed on the menu.
[Meredith R. Miller]
Friday, February 10, 2012
As the ABAJournal reports here, two students have elected not to go gently into that good night but to sue their law school for dismissing them after they failed to maintain a 2.0 GPA at the end of their first year in law school. The culprit, the students allege, was their contracts course, in which they were awarded grades of "D." The kicker -- the course was taught by an adjunct professor.
The offending course was Contracts II, a 3-credit course which accounted for precisely 10% of the students' aggregate GPA for the first year. It is very hard to imagine that this "D" was a significant departure from the students' performance in their other first-year courses.
This brings to mind once again Professors Amar and Ayres' proposal that Law Schools offer to rebate 50% of first-year students' tuition if they will quit after the first year. These two students would benefit from such a system, although one might doubt that bounded rationality would enable the students who, in the long term, would benefit most from such an offer would actually take it.
Monday, January 23, 2012
A few years ago, the story of a "blood contract" between two Korean businessmen caught the attention of contracts profs. In that case, one of the men made a promise to the other to repay money -- and made the promise on a cocktail napkin in blood. The court ruled the promise was unenforceable because it lacked consideration. I wrote about the case for the Wake Forest Law review here and last year, the Wake Forest Law Review Online posted responses by Professor Scott Burnham here and Professor David Epstein here. I recently posted a reply to those responses here. Deborah Post, Associate Dean for Academic Affairs and Faculty Development and Professor of Law at Touro Law, has now added her thoughtful perspective to the discussion here.
Friday, January 13, 2012
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.
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!
Thursday, January 12, 2012
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 Frigaliment, Lumley, 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.
Wednesday, January 11, 2012
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 Frigaliment, Lumley, 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).
Monday, January 9, 2012
Continuing our series of posts on Professor Richard Craswell's first-year contracts course in song. Previous installments have included Professor Craswell takes on Frigaliment, Lumley, 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:
Friday, January 6, 2012
We have already presented Stanford Law's Richard Craswell's takes on Frigaliment and Lumley. Today, we offer his song about Wood v. Lady Duff Gordon, a case we have previously mentioned, for example here, here, here, here, and here.
Here is Professor Craswell's summary:
Born Lucy Sutherland, she married a Baronet and became one of the first celebrity fashion designers, enjoying success in the UK and France. Her American ventures were less successful, though, especially the effort to sell her designs through Sears and other mass retailers. Among other problems, she had already granted her American marketing rights -- including the right to half of the profits on each sale -- to a publicity agent, Otis Wood.
When Mr Wood sued for the unpaid royalties, Lady Duff-Gordon defended on the ground that Wood had not explicitly PROMISED he would do anything in return, so Duff-Gordon's promise to Wood was unenforceable for lack of "consideration." New York's highest court disagreed, in a famous opinion by Judge Benjamin Cardozo,
For a discussion of the case's historical context, see Victor P. Goldberg, "Reading Wood v Lucy, Lady Duff-Gordon with Help from the Kewpie Dolls," in his book, Framing Contract Law: An Economic Perspective 43 (2006). Other useful discussions can be found in the symposium introduced by James J. Fishman, "The Enduring Legacy of Wood v Lucy, Lady Duff-Gordon," 28 Pace L. Rev. 161 (2008); and in Mary Joe Frug, "Re-Reading Contracts: A Feminist Analysis of a Casebook, 34 American U. L. Rev. 1065 (1985).
And here's the video:
Wednesday, January 4, 2012
Stanford Law's Richard Craswell has shared with us a link to his collection of contracts YouTube videos. But a pig this good you eat one leg at a time. So for now, we just include his song about Frigaliment, Judge Friendly's great chicken coup. It's not like we haven't written about this case before, for example, here, here, here, here and here.
But we never tire of new approaches to the case. Here's Richard Craswell's:
Monday, November 21, 2011
The legal blogs are afire (see our very own Jeremy Telman's post here, and others here , here and here ) about this article about the impracticability of the law school curriculum. The article takes aim at “chin-stroking scholarship” that supposedly “nobody” reads. I'm puzzled about labeling scholarship as worthless because it's not more widely read - that doesn't necessarily reflect the potential value of the article. The article grossly over generalizes the nature of legal scholarship. Maybe it’s my chosen areas (contracts and cyberlaw), but most of what I read --and yes, I do read a lot of law review articles-- tackles real world, sticky social and legal issues caused by technological developments and contemplates possible solutions based on (surprise!) legal doctrine. Theoretical articles, as we contracts profs know, shed light on the “why” questions and thus help in the application of doctrinal rules to novel situations. The bad rap that scholarship receives seems to come from a handful of articles which are published by a handful of journals that push the envelope and get all the attention of (some) journalists and (some) judges. (I’m not commenting about the articles cited in the NYT piece because, unlike the journalist, I try not to judge an article I haven’t read by its title). I don’t think that’s a problem in and of itself – not all of legal scholarship should be about real world solutions and what might seem like an outrageous, pie-in-the-sky idea now may not seem so outrageous in a few years. (The anti-intellectual criticisms in the article remind me of equally inane arguments about the irrelevance of a humanities curriculum, literary novels, classical music and art). What is problematic is when journalists or judges use a handful of articles as examples of what all law review articles are like. These folks just don’t know the good stuff that’s out there -- many articles do in fact explain doctrine, have at least the potential for practical application or contribute in some way to our understanding of the law. The fact that more articles don't get cited by courts is a shame and may reflect more about the elitist bent of (some) judges than it does about the nature of legal scholarship generally. The real problem with legal scholarship is that it's not more widely read. I think that more judges should read more legal scholarship, and in a wider variety of journals. Maybe then we wouldn’t have short-sighted, doctrinally confused cases like ProCD v. Zeidenberg – a case about which many of us contracts profs have written. Unfortunately, not enough courts seemed to have read those articles. Maybe the state of contract law would be better if they had.