February 15, 2013
What Does the Cruise Contract Say?
CNN's Erin Burnett did some intrepid reporting and "went to book a cruise . . . on Carnival so we could look at the contract..." The contract apparently says that, even after 5 days of being stuck on a disabled ship with no electricity or plumbing, "you're out of luck":
Shute v. Carnival Cruise Lines reprise?
[Meredith R. Miller]
February 12, 2013
Update: Maher Takes Aim at Trump's Lawyer
We had previously blogged about the demand letter that Donald Trump sent to Bill Maher. Maher dedicated a segment on his show to the dispute, taking aim at Trump's lawyer. Maher begins: “Donald Trump must learn two things: what a joke is and what a contract is.”
The segment is reminiscent of the Leonard v. Pepsico decision when Judge Wood takes on the task of explaining why the harrier jet commercial was "evidently done in jest." Here, Maher continues the humor in explaining why it was parody when challenged Trump to prove that he (Trump) was not born of an orangutan.
Here's the clip:
[Meredith R. Miller]
December 31, 2012
Of Hobbits and Contracts
The other night, I finally got to see The Hobbit: An Unexpected Journey. Having recently spent several months in New Zealand (the home of Peter Jackson’s Weta studio), I had been surrounded by Hobbit-mania and was interested to see whether the movie proved worthy of the hype. I wasn’t disappointed. Although some critics were, well, critical, I thought it was an extremely entertaining movie that made time fly. Making a highly entertaining movie even better, a lengthy contract played a pivotal role. When Gandalf the Wizard, and Thorin and his company of dwarves seek Bilbo Baggins’ (i.e. the aforesaid hobbit’s) assistance to accompany them as burglar on an unexpected journey, they first ask him to sign a contract. The contract, several pages long, outlines in detail his compensation (i.e. consideration) and contains warnings and numerous disclaimers of liability in favor of Thorin & Co. Being a wise hobbit, Bilbo actually reads the contract, faints, and then refuses to sign it. The next morning, he awakens to a quiet house (dwarves know how to party, but apparently do so responsibly). Bilbo has a change of heart, decides he does want excitement and adventure, signs the contract, picks it up, and runs out of his house to join the departing dwarves. This is where --for a contracts prof -- the tension is most high. Having rejected the terms of the contract the night before, we know that the hobbit no longer has the power of acceptance. Therefore, when Bilbo thrusts his signed contract into the hands of one of the dwarves, he is only making an offer. It is the dwarf (who apparently has authority to accept on behalf of the other dwarves) who has the power of acceptance. I don’t think I need a spoiler alert before revealing that they do accept (there wouldn’t be much of a movie if they didn’t).
There were so many things to like about the movie, not the least of which was the way it illustrated how relational contracts set expectations, shape relationships and establish trust. At one point, Bilbo seeks to desert the dwarves. Although one could argue changed circumstances, I think a better explanation would be that given Thorin’s disparaging comments about Bilbo’s suitability for the journey, Bilbo decides to adjust his performance obligations accordingly. But events (and the always fascinating Gollum) intervene. In the end, Bilbo carries out his contractual obligations, proving that - even in Middle Earth - contracts are alive and well.
December 05, 2012
Study Break: Visions of Leonard v. Pepsico on 30 Rock
In a recent episode of 30 Rock ("Mazel Tov, Dummies!"), Liz Lemon (Tina Fey) gets married. Liz attempts to subvert the wedding industrial complex by tying the knot in her gym clothes at City Hall. She fights any desire to make it a "special day," leading her boyfriend/fiance to tell her "it is ok to be a human woman."
Interesting for our purposes: there is a sub-plot in the episode that is reminiscent of Leonard v. Pepsico. It begins at a little past 4 minutes into the episode. A creepy character played by John Hodgman comes to collect a woman (the character Jenna Maroney) that he says he earned by collecting $1,000,0000 Surge points. Surge is a soda and his claim to the money is based on a tv advertisement. The Surge points catalogue entitles Hodgman to the item or its equivalent value. Since it is "illegal to own someone," Jack Donaghy (Alec Baldwin) has to determine Jenna's value (and Jenna is not happy with the assessment of her worth).
Take a study/grading break:
[Meredith R. Miller - h/t 1L Matthew Gray]
August 14, 2012
Don't Get Screwed Over
Docracy is an open source legal document site. The site has launched a video campaign called "Don't Get Screwed Over" - it very effectively conveys the importance of freelancers having written contracts:
A free open source contract site is a great idea. I am not convinced, however, that it obviates the need for an attorney. That said, it is true that, regardless of whether an attorney is involved, freelancers should always get their deals in writing and carefully express expecations and payment schedule. The site's founder Matt Hall appears to share in my sentiment and believes that his site is a starting point for freelancers to figure out what they need and to find an attorney. Hall told .net magazine:
[T]he video was designed to "make sure freelancers are aware how important it is to have a contract for work they do, and that there are resources like Docracy that can take the fear and mystery out of the process". He said it's increasingly common that freelancers don't get paid for work they've done, starkly highlighted by projects like the World's Longest Invoice.
Hall recommended "upfront and clear communication with your client about what's expected, when it's expected and when you'll be paid", and then getting this all down in writing and signed. "Clear communication can go a long way to avoiding problems in the future," he added. And while Docracy can be a starting point, Hall said such sites are not a replacement for proper legal advice: "A good lawyer who understands your business will save you money over the long term, so get educated and then find a good lawyer you like working with. We have a bunch of great, tech-savvy lawyers on the site who have already shown their willingness to help freelancers, so they might be a good start."
[Meredith R. Miller]
May 25, 2012
Lucy van Pelt Ponders Fundamental Contractual Issues
Since Meredith has decided to take an unpaid leave-of-absence this summer, we have to take some short-cuts to make sure we can continue to feed our readers' voracious hunger for new contracts-related stimuli.
Here, for example, is a YouTube clip that bears the caption "All I need to know about contracts"
The comments following the video suggest that 1) Charlie Brown's cause of action would lie in promissory estoppel, not in contract; or 2) that the contract is binding if signed by both parties even in the absence of notarization.
As Charlie Brown might say to express exasperation in this context, *Sigh*. Isn't this obviously a case of tort rather than breach of contract? What contractual damages has Charlie suffered? What non-tort damages would he have based on a theory of promissory estoppel?
May 24, 2012
"Hot Dogs Don't Have Contracts...."
Yup, an ad for internet service:
[Meredith R. Miller]
November 08, 2011
Hitler's Take on the Chicken Case
Ever wonder how the facts and primary arguments in Frigaliment, a.k.a. The Chicken Case, could be illustrated via a humorous video clip involving Hitler? Yeah, me neither. Until now.
Last night, a former student of mine sent me a link to a "Hitler Rant" on this very case. For those who, like me, are too old and boring busy to have heard of HItler Rants before, they are an internet meme in which various "authors" craft humorous captions on all sorts of topics and insert them into the same clip from the critically-acclaimed German film, Downfall. For those who, like me, are children of the '80s, think Mad Libs for movie trailers. (Our fearless leader, Jeremy Telman, previously blogged about the phenomenon, and its application to contract doctrine, here.) As you likely recall, in Frigaliment, the core of the dispute was whether an agreement to purchase "chicken" should be interpreted as applying to only "young" chicken or any chicken. As for the Hitler Rant regarding Frigaliment? Well, you just have to see it for yourself.
[Heidi R. Anderson, h/t anonymous student]
November 03, 2011
By Popular Demand
So, if a popular movie making fun of the misuse of "plethora" has no effect (perhaps even exacerbates the phenomenon?), what hope is there for a mere blawg to have an impact?
June 22, 2011
Must See TV: Hot Coffee Premieres on HBO on Monday 6/27
Trust me when I tell you that it is very difficult to get friends, family, students and acquaintances engaged in a meaningful discussion of "mandatory arbitration." Trust me further that there is now a wonderful documentary that manages to make this and other civil justice topics interesting and engaging for everyone. (Indeed, my viewing companion, proudly not a lawyer, turned to me at one point in the movie and whispered "didn't you write a paper about something like that?")
Last night, I was fortunate enough to invite myself via twitter get invited to a screening of Hot Coffee at HBO. Hot Coffee is a must see documentary about the way that business interests, "tort reform," judicial elections and "mandatory arbitration" have systematically worked in concert to deny plaintiffs access to civil justice. It is the work of the energetic and passionate director Susan Saladoff who spent 25 years as a trial lawyer before becoming a filmmaker. The documentary is well-conceived and thought provoking. It takes some very complex topics and organizes them and presents them through compelling personal stories.
The title "Hot Coffee" refers to the iconic case that is ubiquitous in pop culture as a symbol of the frivolous lawsuit: the woman who sued McDonalds because she was served a coffee that was too hot. The film starts very strong by retelling this story through interviews with the plaintiff's family. This challenged me (and from the gasps in the theater, I suspect everyone else viewing the film) to see the case in an entirely different light. With that strong start, the viewer is engaged and ready to hear about damage caps, judicial elections and mandatory arbitration in consumer and employment contracts.
Here's the trailer:
After the film, there was a Q&A session moderated by Jeffrey Toobin. He appeared to receive the movie very favorably, noting that the fine print in a cell phone contract is not one of the sexy topics that CNN hires him to discuss on the evening news segments (which reminded me of this Dahlia Lithwick piece in Slate, which seemed to begrudgingly report on AT&T v Concepcion).
Toobin did mention one frustration, which could be leveled as a critique of the film -- that it only presents one point of view. Notably absent and/or unwilling to participate were voices from the "other side," i.e., those in favor of damage caps and mandatory arbitration. Saladoff's response, I thought, hit the nail on the head: in so many words, she said that she wanted to tell this side of the story, and the voices in favor of these reforms already had a well-financed platform (and, indeed, overtaken the public consciousness). Perhaps I am partial to her response because her film paints a picture in line with my world view, and I am just so thrilled to finally see an engaging and accessible presentation explaining the systematic erosion of civil justice at the behest of corporate interests.
Our students come to law school generally ignorant of or misinformed about tort reform, mandatory arbitration and many of the other topics presented in this film. However, they do at least know of handful of cases -- OJ, Bush v Gore and, of course, the hot coffee case. I have no doubt that this film will be used in the classroom. It is masterfully done and captivates those uninitiated with these topics as well as those who have studied them (and even includes a few clips of interviews with George Lakoff). Please tune in to HBO on Monday night.
[Meredith R. Miller]
February 09, 2011
Ambassador Seeks New Posting
Yesterday's New York Times reported that Beverly Hills, California has let go its ambassador, Gregg Donovan, who for the past decade has greeted tourists in a top hat and red tailcoat with polyglot shouts of "Welcome to Beverly Hills!" According to the Times, the official position of Beverly Hills Ambassador was created to help establish a friendlier atmosphere on Rodeo Drive after it developed a bad reputation when a fictional storekeeper demeaned a fictional prostitute played by Julia Roberts in a film about how the real lives of prostitutes are really quite a bit like the lives of every other character Ms. Roberts has ever portrayed. This is a bit confusing, since as the clip below illustrates, the simple solution is not to have the government throw money at problems by hiring yet another public employee at taxpayer expense. The solution, as any self-respecting woman knows, is to have a rich guy pay to enhance the self-esteem of working women.
Although Mr. Donovan is "without a doubt" the human being most photographed by tourists in the world, we have no copyright-free photograph to share, perhaps in part due to a contract dispute over Beverly Hills' right to continue to use Mr. Donovan's image in its brochures. When Beverly Hills gave Mr. Donovan his notice, it sent him a separation agreement in which he was to permit the city to continue to use his image in its promotional materials. Mr. Donovan refused to sign. According to the Times, he will still occasionally shout greetings to people on Rodeo Drive, just out of sheer love of his vocation, but he is also looking for other gigs.
Anybody out there looking for an ambassador? New York? Hollywood? Las Vegas?
Actually, after The Paper Chase, perhaps Harvard Law would benefit from an ambassador in Mr. Donovan's mold.
January 21, 2011
What Darth Vader wants in the contract, he gets in the contract
For anyone looking for a clip to accompany the teaching of modification, the pre-existing legal duty rule, duress, negotiations or The Law of Star Wars, I offer this 1-minute excerpt from Robot Chicken, a show in the Adult Swim block on Comedy Central, which often parodies pop culture. This particular parody focuses on a deal between Darth Vader and Lando Calrissian that Darth Vader repeatedly "modifies."
Two important warnings before you watch: (i) the clip includes a few bleeped-out expletives, and (ii) you may find yourself unable to stop repeating Vader's catch phrase for at least two hours after viewing.
Hat tip to my TA for passing this along to me (I am way too old busy to be watching shows like this one.)
November 10, 2010
Superior bargaining power, for sure
It's not clear whether this is duress, or undue influence, or unconscionability, or something else, but Charyl Preston (Utah) passes on this link she got from a student:
October 31, 2010
There's one one horror film I know of where the heroes include a business lawyer and a university professor, but that one is one of the best. It was the scariest of my childhood, hands down.
October 26, 2010
Red Owl, Professor Kingsfield, and Mary Tyler Moore
Turns out that MTM went shopping at a Red Owl store in Minneapolis -- as you can see on the video of the show's opening he's posted on the site. I'm older than Gordon, but I enjoyed the show, too, though the bit of trivia I recall is "Whose jersey is she wearing while washing the car?"
Unlike Gordon, I wasn't a fan of The Paper Chase, I was more into a short-lived show called The Storefront Lawyers. I don't have a video, but here are the Ventures with the show's VERY cool opening theme -- which fortunately doesn't sound anything like Seals & Crofts:
Speaking of Hoffman, be sure to check out Bill Whitford's and Stewart Macauley's fascinating backgrounder, Hoffman v. Red Owl Stores: The Rest of the Story.
P.S. She's wearing Fran Tarkenton's #10 Minnesota Vikings jersey.
October 08, 2010
The Daily Show on the Double Standard of Strategic Default
The Daily Show does a little investigative reporting on the paper I recently posted to SSRN:
|Mon - Thurs 11p / 10c|
|Mortgage Bankers Association Strategic Default|
[Meredith R. Miller]
June 04, 2010
UCC Legislative Update
Since my last update, Mississippi and Wisconsin have enacted Revised Article 1, Mississippi has enacted the 2002 Articles 3 and 4 amendments, and Florida and Georgia have enacted Revised Article 7. Most of these enactments will take effect on July 1; all of them will be in effect by August 1.
Revised Article 1
As of June 1, 2010, Revised Article 1 was in effect in thirty-seven states: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, and West Virginia.
Mississippi SB 2419 and Wisconsin SB 472, enacted this spring, will take effect on July 1 and August 1, respectively. Pending bills in Massachusetts (HB 89) and Ohio (HB 490) have shown some signs of life; but both have many hurdles to clear to achieve enactment this year.
What constitutes "good faith" remains a bone of contention. Twenty-six of the 37 states in which Revised Article 1 is already in effect enacted the uniform § R1-201(b)(20) "honesty in fact and the observance of reasonable commercial standards of fair dealing" definition, while 11 retained the pre-revised 1-201(19) "honesty in fact" default standard and the heightened standard §§ 2-103(1)(b) & 2A-103(3) impose on merchants. Mississippi SB 2419 adopts uniform § R1-201(b)(20); Wisconsin SB 472 retains the bifurcated standard; and Indiana SB 501 replaces the bifurcated standard Indiana enacted in 2007 with the uniform § R1-201(b)(20) standard. As of August 1, twenty-eight states will require all parties to act honestly and observe reasonable commercial standards of fair dealing; while twenty-three (including DC and the 11 states that have not yet acted on Revised Article 1) will require mere honesty from non-merchants, reserving for merchants the further obligation to observe reasonable commercial standards of fair dealing.
Article 2 & 2A Amendments
Oklahoma's 2005 amendments to its versions of Sections 2-105, 2-106, and 2A-103 (about which I previously reported here) represent the only successful effort to amend any state's enactment in a manner consistent with any of the 2003 amendments. There has been no reported action on this year's Oklahoma HB 3104 (detailed in my last update), which would have enacted more of the 2003 amendments, since it was referred to committee on February 2, 2010 -- the day following its introduction.
Article 3 & 4 Amendments
As of June 1, 2010, the 2002 amendments to Articles 3 and 4 were in effect in eight states: Arkansas, Kentucky, Minnesota, Nevada, New Mexico, Oklahoma, South Carolina, and Texas. Indiana SB 501, enacted in May 2009, and Mississippi SB 2419, enacted in April 2010, each take effect on July 1, 2010.
The only reported pending Articles 3 and 4 bill is Massachusetts HB 90, which has been languishing for nearly seventeen months in the Joint Committee on Financial Services, to which it was referred on January 10, 2009.
Revised Article 7
As of June 1, 2010, Revised UCC Article 7 was in effect in thirty-six states: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Virginia, and West Virginia.
Florida HB 731 and Georgia HB 451, both enacted in May, will take effect on July 1. Pending bills in Massachusetts HB 89 (see above) and Ohio HB 490 (ditto) have shown some signs of life; but both have many hurdles to clear to achieve enactment this year. Two other Revised Article 7 bills introduced or reintroduced this year -- Washington SB 5154 and Wisconsin AB 688 -- are, to borrow a line from Mike Myers's quotable Stuart Mackenzie, "teats up" for the time being (although the odds are good that one or both legislatures will revive Revised Article 7 in a future legislative session).
[Keith A. Rowley]
March 30, 2010
A Contract to Share
A few weeks ago, Professors Douglas Kysar (below right) and Jon Hanson (below left) delivered the Monsanto Lecture at the Valparaiso University School of Law, "Abnormally Dangerous: Inequality Dissonance and the Making of Tort Law." As the subject was torts, I didn't really follow much of it. However, they did have a PowerPoint presentation with an embedded movie about two monkeys, Vulcan and Virgil. You can watch the movie:
SPOILER ALERT: the movie is about monkeys that have to cooperate to get at some nuts. One monkey shares a tool with another monkey in a separate enclosure. The question was whether the monkey that used the tool to get the nuts would share them with his companion. Professors Kysar and Hanson cleverly stopped the movie halfway through, and we all groaned. We wanted to know if the monkeys would share. They did share!! Three nuts each; a perfect 50/50 split. We were all so happy and relieved. Tears flowed, professors and students gave each other high fives and then we all joined in a chorus of kumbaya, with four-part harmony.
Why do we want the monkeys to share and why do we humans so often find reasons not to do so? Professors Kysar and Hanson know the answers, but you will have to read their paper when it appears in the Valparaiso Law Review to find out. In the meantime, here's a case in point. As reported here on Boston.com, two sisters are fighting over whether or not one sister must share her $500,000 in lottery winnings with the other.
Theresa Sokaitis, who is 84, and Rose Bakaysa, who is 87, seem to have developed a habit of small-stakes gambling. The two sisters always split their winnings 50-50. Fifteen years ago, after they won $165,000 at a casino, they formalized their arrangement in a notarized, executed written agreement to that effect. The crucial language is as follows:
We are partners in any winning we shall receive. (Such as slot machines, cards, at Foxwoods Casino, and tickets, etc.).’
One year later, the sisters feuded. Ms. Sokaitis renounced the partnership and Ms. Bakaysa said that was fine with her. Ms. Bakaysa, the lottery winner, tore up the contract and informed her sister that she wouldn't get a dime. The two are now squaring off in the New Britain Superior Court in Connecticut. One lawyer involved in the case commented, "It's a real sad story on every level."
Indeed. Why can't we be more like monkeys?
March 29, 2010
Frustration with Contracts
Unbeknownst to most Contracts Professors, a cultural phenomenon has arisen on YouTube known as "Hitler Rants." The method is simple. Most exemplars of the genre take a scene from the recent film about the last days of Hitler, "Downfall," and insert sub-titles to make it seem like Hitler is angry about something other than the defeat of Germany's armed forces. The funniest one that I have seen is the one where Hitler plays a law professor who learns that he has to teach on Fridays.
Here's one about Hitler's frustration with contracts doctrine. Unfortunately, it seems to have been done by an English law student. As a result, many of the references may be obscure to our U.S. readers.
June 22, 2009
The Coen Brothers on Studio Contracts
I recently watched Barton Fink for the first time in more than a decade and the following scene reminded me of casebook staple Locke v. Warner Brothers, Inc., 66 Cal. Rptr. 2d 921 (Cal. Ct. App. 1997), in which the plaintiff alleged that the studio resolved not to develop any movie idea she pitched and not to hire her to direct any movie during the term of their three-year "non-exclusive first look" development and "play or pay" directorial agreement.
Lipnik: ... I had Lou read your script for me. I gotta tell you, Fink. It won't wash.
Fink: With all due respect, sir, I think it's the best work I've done.
Lipnik: Don't gas me, Fink. If you're opinion mattered, then I guess I'd resign and let you run the studio. It doesn't and you won't, and the lunatics are not going to run this particular asylum....
Fink: Yes, sir.
Lipnik: Hell, I could take you through it step by step, explain why your story stinks, but I won't insult your intelligence. Well, all right. First of all, this is a wrestling picture; the audience wants to see action, drama, wrestling, and plenty of it. They don't wanna see a guy wrestling with his soul -- well, all right, a little bit, for the critics -- but you make it the carrot that wags the dog. Too much of it and they head for exits and I don't blame 'em. There's plenty of poetry right inside that ring, Fink. Look at Hell Ten Feet Square.... Look at Blood, Sweat, and Canvas. These are big movies, Fink, about big men, in tights -- both physically and mentally -- but especially physically....
Fink: I'm sorry if I let you down.
Lipnik: You didn't let me down.... You let Ben Geisler down. He liked you. Trusted you. And that's why he's gone. Fired. That guy had a heart as big as the outdoors, and you f*cked him. He tried to convince me to fire you too, but that would be too easy. No, you're under contract and you're gonna stay that way. Anything you write will be the property of Capitol Pictures; and Capitol Pictures will not produce anything you write....
[Keith A. Rowley]