Tuesday, November 8, 2011
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]
Thursday, November 3, 2011
Wednesday, June 22, 2011
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]
Wednesday, February 9, 2011
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.
Friday, January 21, 2011
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.)
Wednesday, November 10, 2010
Sunday, October 31, 2010
Tuesday, October 26, 2010
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.
Friday, October 8, 2010
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]
Friday, June 4, 2010
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]
Tuesday, March 30, 2010
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?
Monday, March 29, 2010
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.
Monday, June 22, 2009
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]
Monday, December 8, 2008
I consulted several print and on-line versions of Dickens's A Christmas Carol and did not find the following dialogue, nor does it appear in all of the film versions of the tale. So, I'll attribute it to the Roger O. Hirson's screenplay for the 1984 Hallmark Hall of Fame version of A Christmas Carol, starring the late, great George C. Scott.
Ebenezer Scrooge, delayed on his way to the mercantile exchange by his nephew, Fred Holywell's, unwelcome visit to Scrooge & Marley, arrives shortly before the exchange is to close, whereupon he encounters Messrs. Tipton, Pemberton, and Forbush (none of whom appear in Dickens's text), with whom Scrooge has been negotiating the sale of a quantity of corn. What follows illustrates the then-prevailing common law rule that an offer made in a face-to-face conversation expires at the end of the conversation unless the offeror indicates otherwise.
Tipton: Ah, Ebenezer. We were afraid you wouldn't come.
Pemberton: It's almost closing, sir.
Scrooge: Well, I'm here, aren't I?
Forbush: I said you'd be here. [To Tipton and Pemberton] Didn't I say Ebenezer Scrooge would be here? [To Scrooge] I knew you'd change your mind.
Scrooge: You're right, I have changed my mind.
Tipton: Oh, good. Then you'll take our bid?
Scrooge: The price has gone up.
Pemberton: Gone up? But that's not possible!
Scrooge: If you want my corn, gentlemen, you must meet my quote ... plus five percent for the delay.
Forbush: That's outrageous, Scrooge. You'll be left with a warehouse stuffed with corn!
Scrooge: Well, that's my affair, isn't it?
Tipton: But if we pay your price, our bread will be dearer. The poor will suffer.
Scrooge: Buy the corn someplace else. Good day, sir.
Pemberton: Scrooge, a moment. We'll take your corn ... at the price you quoted yesterday.
Scrooge: Too late. If you wait until tomorrow, it'll cost you another five percent.
Forbush: Damn it, Scrooge, it's not fair!
Scrooge: No, but it's business. I'll give you a moment to make up your minds.
[The three bidders confer.]
Tipton: All right, Scrooge, done and done!
Scrooge: Very good, gentlemen. Now, make sure that the draft for the entire amount of this transaction is deposited with my clerk. I don't ship until I have the cash in hand.
[Keith A. Rowley]
Sunday, December 7, 2008
A few days ago, in a fit of holiday and pre-exam frivolity, I went to see Australia, the latest Baz Luhrmann – Nicole Kidman collaboration. It’s quite different from Moulin Rouge (no singing to speak of), yet it’s still a similar kind of oddball high-kinetic vision, and a lot of fun. The one flaw of the movie (okay, other than the fact that it lacks Ewan McGregor) is that it tries to weave too many strands together – a sense of the beauty of the outback, cattle ranching, business competition, racism, aboriginal rights, WWII, mysticism, a love story. Too much for one movie.
Aside from all these themes, I perceived that Baz Luhrmann wanted to make a movie about contract law. When Lady Sarah (Kidman) arrives in Australia, the dominating cattle baron, King Carney, offers her a lowball price for her cattle ranch. If she can succeed in driving her cattle to the Port of Darwin, she will win the contract for supply of the army, thereby undercutting Carney’s monopoly. The climax of the first part of the movie (the first movie?) involves whether the army officer will sign Carney’s proffered contract before Lady Sarah rides into town with the cattle.
Unfortunately, the army officer does sign the contract before Lady Sarah arrives. But then the officer tells Lady Sarah that the contract is only binding upon delivery of the cattle to the ship. A race then ensues to load the cattle first. Who knew that the UCC could be so much fun?
So, there you have it. The epic of Australia is really a movie about contract law.
[Miriam Cherry / Cross Posted at Concurring Opinions]
Friday, October 31, 2008
Halloween time always reminds me of the Peanuts Special, It's The Great Pumpkin Charlie Brown. Of course, my thoughts turn to two wise philosophers, admirable contract scholars and lovable losers: Charlie Brown and Linus.
For example, in light of the approaching election day, don't forget Linus' pertinent reminder:
"I've learned there are three things you don't discuss with people: religion, politics and the Great Pumpkin."
Further, the following familiar exchange between Charlie Brown and Lucy (also captured in the clip below) provokes normative questions about the tension between formal legal requirements and fundamental fairness :
Lucy Van Pelt: Say Charlie Brown, I’ve got a football. How about practicing a few placekicks. I’ll hold the ball and you come running and kick it.
Charlie Brown: Oh brother. I don’t mind your dishonesty half as much as I mind your opinion of me. You must think I’m stupid.
Lucy: Oh come on Charlie Brown.
Lucy: I’ll hold it steady.
Charlie: You just want me to come running up to kick that ball so you can pull it away and see me land flat on my back and kill myself.
Lucy: This time you can trust me. See, here’s a signed document testifying that I promise not to pull it away.
Charlie: It is signed! It’s a signed document! I guess if you have a signed document in your possession you can’t go wrong. This year I’m really going to kick that football.
[Charlie runs and goes to kick the ball and, of course, Lucy pulls it away, causing Charlie to fall.]
Lucy: Peculiar thing about this document, it was never notarized.
Poor Charlie. He is persistent at trick-or-treating, and all he can say is "I got a rock!" I suppose that's better than a mere peppercorn. Happy Halloween!
[Meredith R. Miller]
Monday, October 13, 2008
Sullivan v. O'Connor involves a promise by a doctor to provide the plaintiff with a nose that "would enhance her beauty and improve her appearance." However, after three surgeries, the plaintiff emerged with a nose that was disfigured and deformed (as the photo to the left illustrates). She also experienced both mental and physical pain. Plaintiff sued both for medica malpractice and for breach of contract. The jury found for the doctor on the malpractice claim but for plaintiff on the breach of contract claim. She was awarded damages in the amount of $13,500.
This verdict was upheld on appeal, with the Massachusetts Supreme Court ruling that plaintiff was entitled to recover her out-of-pocket expenses ($622.65), for the worsening of her condition and for pain, suffering and mental distress involved in the third operation. Ducking the difficulty of reconciling such damages with contracts doctrine, the court found such harms compensable as either expectancy or reliance damages.
To be honest, I never much cared for this case or its hairy-handed twin, Hawkins v. McGee. They have, for me, the musty scent of a now abandoned pedagogy:
Still, even if legal pedagogy has moved on, the cases are with us -- and yes, they do raise interesting damages issues. Accordingly, a Limerick for Sullivan.
Sullivan v. O'Connor
Assessing a botched operation
Requires tort-like harm calculation.
Suffering and pain
Invade contracts domain
Both as reliance and expectation.
Monday, October 6, 2008
Jack: Have you ever thought about my responsibilities?
Wendy: Oh Jack, what are you talking about?
Jack Torrance: Have you ever had a SINGLE MOMENT'S THOUGHT about my responsibilities? Have you ever thought, for a single solitary moment about my responsibilities to my employers? Has it ever occurred to you that I have agreed to look after the OVERLOOK Hotel until May the FIRST. Does it MATTER TO YOU AT ALL that the OWNERS have placed their COMPLETE CONFIDENCE and TRUST in me, and that I have signed a letter of agreement, a CONTRACT, in which I have accepted that RESPONSIBILITY? Do you have the SLIGHTEST IDEA, what a MORAL AND ETHICAL PRINCIPLE IS, DO YOU? Has it ever occurred to you what would happen to my future, if I were to fail to live up to my responsibilities? Has it ever occurred to you? HAS IT?
Wendy: [swings the bat] Stay away from me!
Thursday, September 25, 2008
On Wednesday, John McCain announced that he was suspending his Presidential campaign so that he can help fix the current financial crisis. As a result, he had to back out of his promised appearance on the "Late Show with David Letterman".
According to the Los Angeles Times, McCain told Letterman that he had to cancel his appearance on Letterman's show so that he could rush to the airport and head to Washington. However, during the taping of his show, Letterman learned that McCain was not only still in New York, he was a few blocks away preparing to be interviewed by Katie Couric.
Letterman seems to viewed McCain's conduct as an actionable breach of contract. Rather than filing a complaint, he attempted to extract damages from the politician with the comedic tools at hand: The L.A. Times reports Letterman's commentary on the live feed that the "Late Show" played of McCain getting ready for his interview with Couric.
“He doesn’t seem to be racing to the airport, does he?” Letterman said, shouting at the television monitor: “Hey, John, I got a question! You need a ride to the airport?”
Letterman didn't stop there. He devoted much of the show to berating McCain for jilting him and for not sending Vice Presidential nominee, Sarah
Palin in his stead.
Apparently, Letterman is not the type to just let things go. According to the Los Angeles Times, Letterman devoted considerable air time to savaging the McCain campaign yet again Thursday night.
Monday, September 22, 2008
Regulars to this blog will notice the return of a number of familiar by-lines. You will be seeing a lot more of Keith and Miriam. And I am especially delighted to have Frank back posting regularly on this blog. Frank was the one who invited me to join the blog, and it's been a terrific experience, made much easier by all the work that Frank and my co-bloggers did to set up the blog before I came on board.
Words cannot describe my happiness. So if you see me walking around with a stupid grin on my face, this is the scene playing out endlessly in my head: