ContractsProf Blog

Hoddeson v. Koos Bros. Revisited

Is Koos Bros. estopped from denying liability for a contract entered into by a "silver-haired mountebank" on its sales floor?  See Prof. Telman's Limerick for more details about this Business Associations staple on agency and estoppel.

After discussing the case, one of my awesome students alerted me to this Improv Everywhere mission at Best Buy:

Imposters Everywhere!

[Meredith R. Miller]

Plaudits for (Mostly Dead) Contracts Scholars

Also appearing recently on Brian Leiter's Law School Reports: the results of a poll of the blog's readers to name The Most Important Legal Thinkers in American Law of the Past Century.  The poll and the results were both skewed toward dyed-in-the-wool jurisprudes, public law scholars, and Supreme Court Justices.  Nonetheless, several of the top vote-getters at least dipped their toes in the waters of contract law and a few dove in unabashed.  Included among the top 25: 1. Oliver Wendell Holmes, Jr.; 2. Richard Posner; 5. Benjamin Cardozo; 7. Karl Llewellyn; 16. Lon Fuller; and 23. Frank Easterbrook(whose failure to grasp the importance of UCC § 2-206 and the first clause of § 2-207(1) in Hill v. Gateway has spawned considerable judicial and academic debate).  I suggested to the pollster that the poll should have included Corbin, Williston, and Farnsworth (curiously, Grant Gilmore -- though not his posthumous alter ego Gil Grantmore -- was in the poll, but did not make the top 25); others suggested Charles Fried and Roger Traynor.  Still, being able to lay a legitimate claim on 20-24% of the top 25 (depending on your view of Easterbrook's contracts contributions) isn't bad for the red-headed step-child* of legal academia.

[Keith A. Rowley]

* - Being the red-headed child of a red-headed step-child whose adoptive parents shipped him off to live at the YMCA while finishing high school, I feel free to invoke this metaphor.

Happy 5th anniversary to TaxProf

Hard to believe that it's been half a decade since a dynamic and far-seeing tax law professor (okay, who would have thought that there was such a thing?) at the University of Cincinnati took a listserv dedicated to tax professors and turned it into TaxProf Blog, the progenitor of the 50+ blogs that now make up the Law Professor Blog Network.  Five years later Paul Caron's blog is still the ne plus ultra (if that's the phrase I'm looking for) of the academic blogging world, and the one that provided the inspiration for our own (modest cough) efforts here.  (Left:  Leslie Caron.  No relation to Paul, but better looking.)

Congrats to Paul for the fifth anniversary of TaxProf, a site that in spite of all odds has managed to make tax law fun and interesting.  Here in Texas we'll have a pitcher of margaritas on the porch this evening in your honor.  Or maybe two.  ¡Salud!

Snow!

I really just wanted to post to say that Valparaiso got hit with about two feet of snow, and it is awesome. Our street is outside of the city (yes, we live in the greater metropolitan Valparaiso area!) and so it has not been plowed and is not likely to be plowed any time soon. And so, the image at left pretty much captures what I see when I look out my window.

But, when I went on wikipedia to get the image in question, I found that my use of it is subject to something called the GNU Free Documentation License, the purpose of which is "to make a manual, textbook, or other functional and useful document "free" in the sense of freedom: to assure everyone the effective freedom to copy and redistribute it, with or without modifying it, either commercially or noncommercially. Secondarily, this License preserves for the author and publisher a way to get credit for their work, while not being considered responsible for modifications made by others."

Now, I often use images on this blog that I find on the Wikipedia Commons. I do so because images on Wikipedia Commons may be freely reused without permission. Increasingly, however, I find that images on Wikipedia are now subject to this GNU license, which is fine, except that it's damned hard to know how to comply with it! The GNU license states:

You may copy and distribute the Document in any medium, either commercially or noncommercially, provided that this License, the copyright notices, and the license notice saying this License applies to the Document are reproduced in all copies, and that you add no other conditions whatsoever to those of this License.

Okay, so, for example, with respect to the image I'm using today, how do I reproduce the license when I copy and distribute an image on this blog? Is it enough that I provided a link to the license (as I have done) or am I supposed to cut and paste the license into each blog post that contains an image subject to the license (which would be ridiculous)?

In addition, the license provides the following:

To use this License in a document you have written, include a copy of the License in the document and put the following copyright and license notices just after the title page:

Copyright (c) YEAR YOUR NAME.

Permission is granted to copy, distribute and/or modify this document under the terms of the GNU Free Documentation License, Version 1.2 or any later version published by the Free Software Foundation; with no Invariant Sections, no Front-Cover Texts, and no Back-Cover Texts.

A copy of the license is included in the section entitled "GNU Free Documentation License".

It seems to me that this "freedom" is more trouble than it's worth.

I do want to give credit where credit is due.

So, thanks, Sean the Spook, for this lovely picture of Long Mynd in Shropshire, taken on February 24, 2005.

It reminds me of home.

[Jeremy Telman]

This Just In: More on Chickens

We're on something of a chicken roll.

I just learned that we, the United States" are "the Saudi Arabia of chicken."

Stephen Colbert recommends that we form an O-Peck on this clip:

I'm not sure how this relates to Frigaliment but perhaps someone can figure it out.

[Jeremy Telman]

I am Chicken (Hear Me Squawk...)

I am teaching Frigaliment tomorrow. While I am not going to class in costume, I did "happen upon" this priceless clip, which I intend to share. Perfect at the end of a Friday class:

Best lyric: "No, I am no dumb cluck..."

[Meredith R. Miller]

Ho-Ho-Huh?

One of my former research assistants sent me this card two or three years ago.

As it is no longer commercially available, I feel safe posting it to the blog for its humor value.  I long ago separated front from back, so I don't even know whose copyright I might otherwise be infringing.

The Law of Turkey Leftovers

I have posited here before that all of contract law could be taught with turkey cases. I’ve recycled two turkey posts year after year, perhaps leading some to believe that I fulfill my blogging commitments with leftovers. But, I am now working on a casebook proposal for The Modern Law of the Turkey: Cases and Problems. Here’s a teaser:

The chapter on Turkeys and Torts will include Pepin v. Wal-Mart Stores, 542 F.Supp.2d 107 (D. Me. 2008). There, a customer at a Wal-Mart store was knocked unconscious when some combination of boxes and frozen turkeys fell off of a pallet and struck him. This case provides a lesson in res ipsa loquitor, a claim which survived Wal-Mart’s motion for summary judgment:

Plaintiff's claim presents a classic res ipsa loquitur case. Resolving all reasonable inferences in favor of Plaintiff, the record on summary judgment supports that Plaintiff has satisfied his burden to produce evidence establishing each element of res ipsa loquitur.

First, there is an unexplained accident: empty turkey boxes fell off of a pallet and struck Pepin. * * * Second, the boxes and pallet were under the management and control of Defendant Wal-Mart. Wal-Mart does not argue otherwise. * * * Third, in the ordinary course of events, this type of accident does not happen absent negligence. This is not a case where there are multiple reasonable causes for a pipe to burst or where two independent automobiles collided. * * * Instead, the character of this accident, where a stack of seemingly stable boxes and/or frozen turkeys fell, is not the type of accident to occur absent negligence.

The chapter on Turkeys and Intellectual Property will include Lucky Break Wishbone Corp. v. Sears, Roebuck & Co., 528 F.Supp.2d 1106 (W.D.Wash. 2007), which involved claims of copyright infringement against an advertising agency, retailer and other competitors. What was the purportedly copyrighted item? Lucky Break Wishbone Corp's founder, Ken Ahroni, conceived of a mass-produced plastic breakable turkey wishbone during Thanksgiving in November 1999, and he kept the wishbone from his Thanksgiving turkey to use as a model. Ahroni took the natural wishbone to a company, which, in turn, used 3-D design and manufacturing software to collect basic structure data of the natural wishbone for use in manufacturing. A prototype was created and Lucky Break registered the “Lucky Break Wishbone” sculpture with the United States Copyright Office.

The chapter on Turkeys and Criminal Law and Process will include People v. Chafford, 2007 WL 2751878 Cal.App. 1 Dist., Sept. 1, 2007) (no longer good for at least one point of law), which raises issues of prosecutorial misconduct based on the following statements made by a prosecutor during closing arguments:

“Now, reasonable doubt, I want to touch on that. Reasonable doubt was presented to you by Mr. Keller as some type of insurmountable burden. It's not. It's not only the same burden that's used in this case, it's the same burden or standard of proof that's used in every criminal court in California and in the country. People are convicted beyond a reasonable doubt every day, so it is not this great insurmountable burden.

“It's built into the system that we have ... and as such, it's always used as a defense. Crime wasn't proven to you beyond a reasonable doubt. That's always a defense to any criminal case. It's kind of like you make the analogy: you can't have Thanksgiving without turkey. Well, you can't have a criminal trial without the defense being reasonable doubt. That's just the way it is. It's built right into the system. [emphasis added] * * *

“Ladies and gentlemen, reasonable doubt is there for a reason. It's there to protect the innocent; it is not meant to be used as a legal loophole for the guilty. Remember that when you're discussing reasonable doubt.”

As always, it is, without a doubt, that we here at ContractsProf wish you a happy Thanksgiving!

[Meredith R. Miller]

I Can’t Believe I Sent it to the Whole Listserve

A recurring theme on the ever-fabulous AALS contracts list-serve involves pressing “reply to all” accidentally.  The list is a fabulous resource, but over the years it has seen its share of embarrassments (because it automatically replies to all when you hit reply, leading many to conclude that maybe that default rule should be changed, yet somehow it remains reply to all, despite the fact that everyone on the list is teaching contracts law and thus understand default rules and should realize that this is a penalty default, with too much information seemingly forced from us and onto the entire listserve, nonetheless we all have to live the consequences of this particularly onerous penalty default, including this horrible run-on sentence). 

We all have experience with this, and I can speak personally.  That law firm associate who accidentally hit “reply all” when responding to the inquiry about workload?  That would be me, informing everyone at the law firm that I indeed was satisfied with my current work assignments (hey, it could have been worse).  But sometimes it seems that people “reply all” strategically.  They *want* everyone to know something good that they did.  So someone sends an email out to an entire list, making public their donation to the homeless shelter.  Other times, someone wants to embarrass the person who sent the original email by picking apart some mistake in the original email.  It’s framed as a private reply, of course, but it goes to everyone.  Of course the author, if asked, will try to play it off as a mistake. “Ooops, sorry, didn’t mean for that to go the whole list.”  Sure, sure, we believe you… What’s the best / worst example of “reply y’alling” that ya’ll can think of?

[Miriam Cherry / Cross-Posted at Concurring Opinions]

Foreclosure Prevention and Modifying Mortgages

In light of the subprime mortgage crisis, which lead to the credit freeze, which has dominoed into a full-out global market meltdown, I thought it would be interesting to talk to someone actually "working on the ground" to prevent foreclosures and keep people in their homes.

This curiosity lead me to Rebekah Cook-Mack, a Skadden Fellow working in the Foreclosure Prevention Project at South Brooklyn Legal Services. You can listen to our podcast interview at The Slippery Slope or download it from iTunes.

Of particular interest to readers of this blog may be our discussion of renegotiation of mortgages to make them more affordable -- which is, really, a matter of contract modification. Topics also include how New York's court system has created mechanisms to encourage mortgage modifications, predatory lending practices, and whether government bailout money should be used to guaranty homeowners' repayment of renegotiated mortgages.

[Meredith R. Miller]

On Presidents, Puppies & Promises

This blog is, at least nominally, about contracts. The Restatement (Second) of Contracts § 1 defines a contract as "a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty." So, really, this is a blog about promises.

Our President-elect Barack Obama made plenty of promises on the campaign trail. But there's one promise, in particular, I'll be watching to see him fulfill: the puppy. Obama promised his daughters that, whether or not he won, they'd get a puppy when the election was over. And, he even mentioned the puppy last night in his speech in Chicago: "Sasha and Malia I love you both more than you can imagine. And you have earned the new puppy that's coming with us to the new White House."

It may make his daughters very happy, but the puppy was also absolutely necessary for Obama's presidential image. What president in recent memory has not owned a dog? Millie Bush even co-authored a book. Seriously, what kind of legacy does a president leave if he has no artifacts for the Presidential Pet Museum?

And, no matter your political leanings, you have to admit the warm feeling you get when you conjure the image of the picturesque Obama family with a puppy. It pulls at your heartstrings.

Puppies have that effect. In a New Yorker piece earlier this year, Author David Sedaris, writing on the topic of the tsunami in Southeast Asia, opined:

I'll wager that quite a few sun visors found their way to Southeast Asia after the tsunami. One brutal news story after another, and it went on for weeks. The phone numbers of aid organizations would skitter across the bottom of the TV screen, and I recall thinking that if they wanted serious donations they ought to show a puppy. People I know, people who had never before contributed to charity, emptied their pockets when a cocker spaniel was shown standing on a rooftop after Hurricane Katrina hit, eight months later. "What choice did I have?" they asked. "That poor little thing looked into the camera and penetrated my very soul."

The eyes of the stranded grandmother, I noted, were not half as piercing. There she was, clinging to a chimney with her bra strap showing, and all anyone did was wonder if she had a dog. "I'd hate to think there's a Scotty in her house, maybe trapped on the first floor. What's the number of that canine-rescue agency?"

Really, whether red or blue at heart, who doesn't like puppies?

(Pictured above, Fala. FDR's dog).

[Meredith R. Miller]

There's NO Crying in Blogging!

As you'll see from today's posts, its good to have our faithful blog editor Frank Snyder "back in the saddle."  (His words, and not my own cheap reference to his ill-fated altercation with a quarter horse named Moses).

Among other things, Frank has been busy with his beloved Texarkana Gunslingers.  As I imagine it, Hanks was channeling Frank in this clip:

Inspiring to base-ballers and bloggers alike!

[Meredith R. Miller]

Tagged... We're It...

Torts Prof Blog tags us with this meme: (1) identify five non-law blogs that you find interesting, and (2) tag five law-bloggers to do the same thing. I've never been a big fan of chain letters, and this internet meme thing is quite reminiscent of all the promised postcards that I never received. As superstition would have it, I'll participate.

I won't purport to speak for all of us here, and encourage my co-bloggers to chime in. Leaving off the regular rotation of political gossip blogs, here are my top five non-law blogs, which tend to be either technological or NY centric:

(1) Gothamist: "NYC news, food, arts & events"
(2) Curbed: NYC real estate
(3) Lifehacker: "tips and downloads for getting things done"
(4) Eater: NYC restaurants
(5) Engadget: technology / gadgets

I tag:

(1) the unflappable Prof. McGaugh at Millennial Law Prof
(2) the rocking Matt Lerner at NY Civil Law
(3) the inimitable Prof. Kotkin, blogista at clinicians with not enough to do
(4) the fearless solo, Carolyn Elefant, at My Shingle
(5) the best friend of man's best friend, Adam Karp, at Animal Law Blog

You're it!

[Meredith R. Miller]

Back To School...

Here at ContractsProf Blog, we tend to shy away from sartorial advice.  That is, unless it is back to school time.  In the past, we have recommended this t-shirt for the first day of school:

Here's yet another fine possibility (click on the shirt for a better view):

Have another great year!

[Meredith R. Miller]

We Plead the Fifth

It is undeniable that, here at ContractsProf Blog, we love all things Rose the 2d of Aberlone.

And, we took great interest in this story, via Jeffrey Lipshaw at Legal Profession Blog:

As I'm still a member in good standing of the State Bar of Michigan, I get the Michigan Bar Journal (the repository of an article I wrote twenty-five years ago which was of no value whatsoever academically speaking, but that's another story). Well, it turns out that pretty little Kellogg Park, the Midwest equivalent of the town green, turns out to have all sorts of historic legal implications to it. The June, 2008 issue of the MBJ highlights the rededication of the Rose of Aberlone plaque in the park. As we all recall, Rose was the the breeder cow whose fertility or lack thereof was the subject of Sherwood v. Walker (Hiram of whiskey fame), the 1887 contract law chestnut.

Why a rededication of the Rose of Aberlone plaque? Apparently, vandals pilfered the original one. Prof Lipshaw would have done well to stop his reporting there. But, oh no, he goes on to point the finger at us and, it seems, in particular, one Professor Franklin Snyder:

Far be it from me to cast aspersions, but I think you will agree that the left side of this page [i.e, ContractProf Blog] contains a nice list of the usual suspects, particularly toward the top. So the criminal law clearly, it seems to me, has a place in the history of Kellogg Park.

We admit nothing beyond admiration for Rose and, in the spirit of a grand tradition, we feel compelled to otherwise exercise our Fifth Amendment right:

[Meredith R. Miller]

Another Plug for The Slippery Slope

This time, I think I need not ask forgiveness for a shameless plug for my new podcast project, The Slippery Slope. While the project features general interest, law-related conversations on a wide variety of topics, the most recent episode actually does touch upon a topic near and dear to the heart of ContractsProf Blog: the sale of goods -- on the street, that is. Here's information about the most recent podcast, which you can listen to or download here:

This podcast features a conversation with attorney Sean Basinski, described by New York Magazine as the "César Chávez of Hot-Dog Stands." Sean is the founder and Director of the Street Vendor Project (which is affiliated with the Urban Justice Center). Upon graduating from law school, Sean received a Yale Initiative for Public Interest Law Fellowship to start the project. His inspiration came from his own 9-month stint selling Mexican food from a pushcart on Park Avenue and 52nd Street in Manhattan.

Topics include: street vendor demographics, permit and licensing requirements, common misconceptions about New York City street vendors, where the carts go at the end of the day, and the amount of street food Sean consumes.

[Meredith R. Miller]

"A Kiss is not a Contract"

A little July humor from Flight of the Conchords. Caveat: contains language and themes that may not be appropriate for work or the company of children.

The summary: a kiss does not constitute a binding promise of anything more (maybe just an invitation to make an offer?). I like the gender role reversal here -- at least, I would have thought gender stereotypes would have a woman singing these lyrics. Adds to the humor (or is the humor?), I suppose. I won't try to determine why this is funny - as we were reminded in Leonard v. Pepsico, "Humor can be dissected, as a frog can, but the thing dies in the process. . . ."

[Meredith R. Miller]

Tangential Rant on a Pet Peeve

This rant is probably more aptly blogged by our friends over at this blog or even this blog, but it will really make me feel better to get this off my chest. When I read this sentence from an inane blog post at "Lis on Law" by Fox News "legal analyst" Lis Wiehl, I cringed (and not only because she is discussing a hypothetical bridesmaid's claim against the bride for intentional emotional distress):

The New York Court of Appeals, the second highest court in this state, has repeatedly stated that most IIED claims fail "because the alleged conduct was not sufficiently outrageous."

It is accurate that the New York Court of Appeals has yet to believe any conduct is extreme and outrageous - something in which, as a New Yorker, I take great pride (nothing shocks a New Yorker!). But, I'd like to set the record straight: The New York Court of Appeals is the highest tribunal in the State of New York.

I have e-mailed Ms. Wiehl to inform her of the error, I will update this post if I receive a response.

[Meredith R. Miller]

The Slippery Slope

I hope I will be forgiven for using this space for a non-contracts item. I wanted readers to know that I have launched a side-side-project of general interest law-related podcasts. Please check it out.

You can learn more about the project and listen to the podcasts on the website. You can also subscribe through iTunes (there is a link to the iTunes page on the site).

I hope you find it interesting.

[Meredith R. Miller]

Gone Fishin'

Posts are likely to be relatively light around here at ContractsProf Blog over the next week or so, while your humble contributing editors are traveling around the globe. No worries, we'll be back with BIGGER, BETTER and BOLDER content when we return. It's a money back guarantee.*

*Void where prohibited by law. Some restrictions may apply. See your local blogger for details. Must be over 18 to participate.

[Meredith R. Miller]