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.
Friday, November 11, 2011
Tadas Klimas, a contracts (among other things) prof in Lithuania and a friend of the blog has shared with us a link to his blog, Civitatus in which he reports on a new opt-in sales law for Europe. His introductory content is pasted in below, but you can get the full story on his blog:
“The train has left the station.” These were the words of Viviane Reding, Vice-President and Commissioner for Justice, Fundamental Rights and Citizenship, spoken at the ECR European Contract Law Hearing held at the European Parliament in Brussels on May 3rd, 2011 (which I attended). This is how the question of whether there will or will not be a pan-EU Contracts Code was answered. The “Commisar” was trying to convey the idea that a political decision has been made and that there indeed will be an EU Contracts Code.
Commissioner Reding did not speak with forked-train. It’s been a slow train coming, but the official proposals have now been made. In words more understandable by American standards, the bill has now (just about a month ago – October 11) been proposed and is in committee.
- Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law (includes the text of the new Sales Law)
- Impact Assessments
- Executive Summary
Here is an alternate link to the EU Sales Law
Among the highlights of the new trans-European code are these:
- It is an opt-in code. This is the reverse of the CISG, which is opt-out.
- It is both Business To Business and Business to Consumer.
- It affects all cross-border trading, including online sales.
- It is applicable to cross-border trading and is not applicable to internal (within-country, national) sales. Thus the regime it imposes is one in which consumers purchasing from a seller within the country the consumer resides in will find their contracts governed as per usual by the national law. But consumers from another EU country, if the contract so states, will find the contract (and their consumer-protection laws) governed by this new opt-in EU UCC (Art. 2) (EU Common Sales Law).
- Supposedly this regime will lower information-costs and enhance, encourage, and expand cross-border trading.
- And my favorite: it contains a facilitative section enabling the new code’s adoption by EU Member States for national (within-border) sales.
The rationale for the code is more or less the standard iteration in defense of such legal regimes (such as the CISG).
Tuesday, October 11, 2011
"Disappeared Contractors": David Isenberg on Steven Schooner on Contractor Deaths in Iraq & Afghanistan
David Isenberg, author of Shadow Force: Private Secuity Contractors in Iraq has a provocative new piece on HuffPo in which he argues that private military and security contractors (PMSCs) are like the "disappeared" victims of dictatorial rule. This is not of course literally true, in that the bodies of PMSCs who are killed abroad are returned so that families can mourn and bury their dead. However, Isenberg finds the analogy fitting because we do not recognize or track the extent to the which PMSCs are bearing the burden on the on-going War on Terror.
He relies on the scholarship and testimony of Geroge Washington University Law School Professor friend-of-the-blog Steven L. Schooner. Professor Schooner has written about this topic in an article co-authored with GWU law student Collin D. Swan, called "Dead Contractors: The Unexamined Effect of Surrogates on the Public's Casualty Sensitivity," about which we have previously blogged here.
The Isenberg piece provides extensive quotations from Professor Schooner's testimony before the congressionally mandated Commission on Wartime Contracting. The gist of the exerpted portions is that we now have more PMSC casualties than military casualties in Iraq and that trend is spreading to Afghanistan as well. These deaths are not reported in the way military deaths are. PMSC deaths thus impose a lower cost in terms of public tolerance for continued war than do military deaths. Professor Schooner also notes, without allocating blame, that the government does more to protect members of the military than it does for PMSCs.
Thursday, October 6, 2011
Freakonomics blogger and Yale ContractsProf, Ian Ayres, has teamed up with his 14-year-old Gleek daughter to write a song, and now he's offering an iTunes gift card worth up to $500 to the winner of a contest to guess which lyrics are his.
It's really two contests in one. The first contest is to guess which of three songs peformed by his daughter Professor Ayres co-wrote and also to specify a line that he authored. That contest ends October 31st. The second contest is to predict the total number of views for the three songs. The deadline for that contest is October 10th. Winner of the first contest will get a gift card; winner of the second contest will get signed copies of two of Professor Ayres' books.
The details of the contest are here.
And as an additional incentive, Professor Ayres offers a special bonus: If the winning entry happens to come from a student or ContractsProf who use the Ayres & Speidel casebook, he and/or his daughter will perform a song of the winner's choosing in a "personal Skype concert." He did not specify that the song has to be one of the three relevant to the contest, so I recommend demanding a performance of Queen's "Bohemian Rhapsody."
Saturday, September 24, 2011
Although this isn’t my first post to the blog, it is the first I’ve written since being officially welcomed (confusing I know, but it has to do with the wonders of time releasing posts…) So, I want to thank Jeremy for the very nice introduction and for the invitation to join my highly esteemed co-bloggers. Now, on to the topic of law profs making extra ca$h!
Over at PrawfsBlawg , Howard Wasserman asks whether a law school may prohibit its professors from reselling courtesy copies of textbooks. I think the answer is that it may as an employment matter, just as it may issue codes of conduct and other rules so long as the prohibition doesn’t run afoul of existing institutional policies, contracts or employment laws (I don’t think any apply to this situation).
What I find more interesting from a contracts prof’s perspective, is whether the publisher may prohibit such resale. As Wasserman notes, "West and Foundation now place stickers on courtesy copies explicitly prohibiting resale." I’m not sure that such a prohibition is valid. As the commenters to his blog post note, the cases in this area are not models of clarity. The critical issue is likely whether the transaction is characterized as a “license or a sale.” If it is a license, the publisher generally can issue restrictions; if it is a sale (i.e. a transfer of title), they probably cannot. With software, courts may permit such restrictions because software transactions are typically viewed as licenses not sales, see Vernor v. Autodesk, for example. (self promotion alert: I disagree – I think it depends upon the transaction, i.e. mass market consumer or customized). With things other than software --notice that I didn’t say goods -- it’s a toss up. A relatively recent case, UMG Recordings v. Augusto, indicates that such a restriction on a label would not be upheld. In that case, the Ninth Circuit found invalid a label prohibiting transfer of ownership of a promotional music CD. The case is at odds with other Ninth Circuit decisions involving software. The ruling in UMG v. Augusto is complicated by the applicability of a federal statute, the Unordered Merchandise Statute, 39 U.S.C. §3009 which provides that mailed unordered merchandise “may be treated as a gift by the recipient, who shall have the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender.” Although there was no money exchanged for the CD, the court found that there was a “gift or sale” for the purposes of the first sale doctrine because there was a transfer of title.
Another interesting issue is whether digital books constitute “software” or “other things.” As the hardcover textbook cedes more ground to its digital counterpart, the characterization of ebooks as “books” or “software” gains importance although the key issue will remain whether the digital content is licensed or sold. Publishers of ebooks are likely to use the language of “license” rather than “sale” to prohibit transfers of ebook copies. It’s not clear whether the courts will defer; if they do, it will limit the impact of UMG Recordings v. Augusto.
Monday, September 19, 2011
We are ever so pleased to introduce Nancy Kim, an experienced blogger who will now be a contributing editor to the ContractsProf Blog. Nancy is a Professor of Law at California Western School of Law in San Diego and also a Visiting Professor at the University of California, San Diego's Rady School of Management. She joined the California Western faculty in 2004 after working as a corporate associate in a couple of law firms and as Vice President of Business and Legal Affairs of a multinational software and services company.
Nancy has a long list of publications, which are listed on her law school home page linked above, but here's what she's been up to lately:
- Contract's Adaptation and the Online Bargain, 79 U. CIN. L. REV. 1327 (2011)
- Expanding the Scope of the Principles of the Law of Software Contracts to Include Digital Content, 84 TULANE L. REV. 1595 (2010)
- Reasonable Expectations in Socio-Cultural Context, 45 WAKE FOREST L. REV. 641 (2010)
- Arbitration's Summer Soldiers Marching into Fall: Another Look at Eisenberg, Miller and Sherwin's Empirical Study of Arbitration Clauses in Consumer and Non-Consumer Contracts (w/ Chii-Dean Lin), 34 VT. L. REV. 597 (2010)(symposium)
- Website Proprietorship and Online Harassment, 2009 UTAH L. REV. 993
- Bargaining Power and Background Law, 12 VAND. J. ENT. & TECH. L. 93 (2009)
- Imposing Tort Liability on Websites for Cyber Harassment, 118 YALE L. J. POCKET PART 115 (2008)
We are especially excited to have her join the blog because of her book manuscript (in progress), Wrap Contracts: Mass Consumer Contracts in an Information Society, which is under contract with Oxford University Press.