Archive for the ‘Weird’ Category

Tea Party Incoherence

posted by Lawrence Cunningham

The Tea Party’s manifesto, called the Contract from America, contains many interesting and some strange ideas.  Its authors proclaim a passionate devotion to the Constitution and its original text, accusing the nation’s political elite of failing to adhere to the grand charter.  Among the ten items in its plank, the first says: “Require each bill to identify the specific provision of the Constitution that gives Congress the power to do what the bill does.”  The document doesn’t say what provision of the Constitution supports that prescription.

  September 24, 2010 at 8:36 am   Posted in: Humor, Weird   Print This Post   13 Comments

A Modest Proposal for Climate Change Adaptation

posted by Frank Pasquale

Dan Farber has recently complained that many “Senate candidates are signatories of the Koch Industries’ Americans For Prosperity No Climate Tax pledge.” I must assume that Prof. Farber has not heard about technological fixes for the climate change problem. As Jane Mayer reports, the “David H. Koch Hall of Human Origins, at the Smithsonian’s National Museum of Natural History, is a multimedia exploration of the theory that mankind evolved in response to climate change.” The exhibit proposes practical responses for the future:

[Exhibit] text says, “During the period in which humans evolved, Earth’s temperature and the amount of carbon dioxide in the atmosphere fluctuated together.” An interactive game in the exhibit suggests that humans will continue to adapt to climate change in the future. People may build “underground cities,” developing “short, compact bodies” or “curved spines,” so that “moving around in tight spaces will be no problem.”

In other words, don’t worry, be Eloi! “Short, compact bodies” might also fit the new 23-inch airline seats better. Perhaps critics of Social Security and the Air & Space Museum can develop an exhibition based on Regis Debray’s Modest Proposal: A Plan for the Golden Years.

  September 14, 2010 at 11:09 am   Posted in: Environmental Law, Technology, Uncategorized, Weird   Print This Post   No Comments

Chatroulette, Julia Child, and the Virtues of Virtual Friendship

posted by Glenn Cohen

A Hispanic teenager listening to music through headphones, a masturbating man, 3 young caucasian women (probably American), two young middle eastern men dressed in army fatigues and a child with a kafiah covering his face shouting something in Arabic and smiling, another masturbating man, 3 japanese young women.

This was what I saw in ten minutes of Chatroulette, an intriguing web site that anyone with a webcam can try. I wanted to try it and blog about it after reading an interesting article in the New Yorker on its teenage Russian founder. You turn on your webcam and are randomly paired with someone else on the site with their webcam on, to whom you can chat vocally or by typing. Either party can push a button that spins the wheel again at any time to be connected with a new partner, and there is no penalty for doing so.

Perhaps 31-year-old law professors are not the favored species in this realm, but I was “nexted” almost immediately in each of the cases except the middle eastern men at whom I started laughing and they laughed back as well. At some point, though, I felt uncomfortable enough myself that I ended the interaction.

Chatroulette is only the newest and strangest instantiation of a phenomenon I’ve been thinking about – virtual friendship. Can one be friends with someone that one has never met, and what kinds of benefits do this form of friendship offer over or to compliment non-virtual friendship? In recently watching Julie and Julia, I was struck by a scene where Julia meets up with the woman, Avis, she has been writing throughout the film.  We discover that the two women have never actually met in person despite being extremely close; they have just been pen pals for years.

The disadvantages of virtual friendship are pretty straightforward, but what might the advantages be? Total honesty if it retains an air of anonymity or removal from one’s social circle? The ability to compose oneself (like a piece of music), that is present a very specific slice of oneself? Many people I’ve talked to of a certain age (usually under 35, those who have had socializing technologies for some period of their youth) have had a virtual friend or two at some point.  These relationships, however, do not seem very long-lived, certainly not like the decade long correspondence of Avid and Julia. Is that just because our social circles are thicker or there is more competing stimuli than in earlier periods?

To add a legal angle on chatroulette, after seeing Robin Wilson present her paper on Sex Play In Virtual Worlds at a conference this summer, I wondered whether the masturbating men on the site might be subject to criminal liability in some jurisdictions if some of their viewers turned out to be children.  Robin (she’ll correct me if I have this wrong) was of the view that on Second Life or other virtual environments that don’t even involve actual images of actual people, under existing doctrine in some states adults can be criminally liable for sexually suggestive remarks and virtual activities.  Under existing doctrine this is true even if those minors represent themselves as adults, the perpetrator has a good faith belief they are adults, and even if the service has an 18+ policy (even if enforced by something like requiring a credit card).  If that’s right, the comparably less virtual and less regulated domain of chatroulette would seem to be full of potential criminal liability.  I am neither a criminal law nor a cyberlaw scholar so I will be curious what those with more expertise think….

  September 3, 2010 at 9:06 am   Posted in: Anonymity, Criminal Law, Cyber Civil Rights, Cyberlaw, Law and Humanities, Media Law, Technology, Web 2.0, Weird   Print This Post   5 Comments

Bad Words: Arbitratable and Arbitrability

posted by Lawrence Cunningham

Terrible vocabulary words are among the negative effects of the arbitration industry’s prosperity that began in the 1960s.  Learned people, on courts, in law offices, and among those vested with power to resolve important disputes, say awful things, like “is this dispute arbirtatable?” and “the issue of arbitrability is for the arbitrator  to decide.”

Leading guilty parties include authors of Supreme Court opinions from a 6-3 majority of current Justices: Breyer, Ginsburg, Kennedy, Scalia, Sotomayor, Thomas–though not Alito, who has had a chance (in 2010′s Stolt-Nielson opinion), or Kagan or Roberts, who haven’t.  

Distinguished predecessors inaugurated this terrible usage in 1960, when Justices Brennan and Whittaker first used the words in SCOTUS opinions in respective concurring and dissenting opinions in that year’s United Steelworkers v. American.   Contemporaries were in on it too, with Justice White using such words in 1962′s DrakeBakeries, and Justice Harlan in 1964′s Wiley & Sons v. Livingston. 

Some Justices seem to recognize how awful the words are by enclosing them in quotation marks, distancing themselves from the bad idiom.  Thus did Justice Scalia insert the word in 2010′s Rent-A-Center v. Jackson–though he used it without parentheses  in an earlier opinion.  

Courts ought to follow Justice Alito’s example from his opinion in Stolt-Nielson.  You can ask whether a dispute is covered by an arbitration clause and whether the scope of a clause addresses a dispute to an arbitrator.  You don’t need awful words like arbitratable and arbitrability.  They sound affected, professionally parochial, and stupid.

  September 1, 2010 at 12:34 am   Posted in: Humor, Supreme Court, Uncategorized, Weird   Print This Post   No Comments

“Exploiting” Lady Gaga: Technical Diction Cringe

posted by Lawrence Cunningham

With Wittgenstein and Corbin, I agree that words are better understood to have variable uses than fixed meanings. But denotations of some words can stir so strongly that context doesn’t neutralize their effect, which can be jarring.

Take the word to exploit (along with exploiting and exploitation). In common talk, this bears a heavy dark meaning of abuse, misuse, ill-use, manipulate. In specialized contexts, it bears the lighter positive meaning of use, develop, utilize.  In more technical contexts, like intellectual property, it means the more optimistic feat of harvesting, producing, reaping, gathering.

Yet when used in technical or specialized senses, diction can ring indelicate. Take examples from the masterly-crafted complaint filed by Robert Meloni  on behalf of music producer Rob Fusari in his lawsuit for breach of contract against his erstwhile protégé, the pop performer known as Lady Gaga (whose real name is Stephani Germanotta).

In discussing Fusari’s original contract with Germanotta and her father, Joe, the complaint explains that the contract was: “for the purpose of exclusively professionally exploiting Germanotta . . . .”

Just below that allegation, the complaint explains Joe’s role in the venture, as co-owner of Mermaid Music LLC, identified as the company that “controlled the rights to exploit Germanotta’s daughter.”

A few lines later, the complaint explains how they settled on the corrporate structure for the pop star’s enterprise: “Joe suggested a compromise whereby Mermaid and Fusari could share control of the exploitation of his daughter . . . .”

I know they’re talking about harvesting, producing, reaping and gathering the fruits of Lady Gaga’s considerable musical and performance talent.  Yet I can’t shake the impression that something more sinister and distasteful is going on.  Not that Meloni needs advice from me, but I’d shy away from that usage in future litigation papers and, especially, before a Manhattan jury.

  August 25, 2010 at 5:07 pm   Posted in: Culture, Current Events, Weird   Print This Post   No Comments

Is Hairtech’s Paris Hilton Complaint a Joke?

posted by Lawrence Cunningham

Jokes are ubiquitous about the hair-extension endorsement imbroglio involving product purveyor, Hairtech International, and celebutante, Paris Hilton. Funny as hair extension products and Paris Hilton are, the complaint itself could be read as a joke, a spoof, a send-up of law. But it appears to be serious, which is sad.

The complaint was filed August 11, 2010, signed by a lawyer named Christopher Brainard, purportedly on behalf of Hairtech, against Paris and Rick Hilton, two companies they allegedly control—and 20 unnamed persons designated as John Doe to be identified later. It alleges fraud and deceit; breach of contract, along with a separate count for breach of contract law’s implied good faith covenant; unjust enrichment; and indebtiatus assumpsit (yes, in California, it appears this hoary common count endures, though anachronistic).

The complaint alleges that Hilton agreed in December 2006 to promote the company’s hair extension products exclusively, but lied about her intention to perform her contractual duties; didn’t show up for work once in June 2007 because she was in jail for drunk driving; abuses drugs that make her unfit as a product model; and exhibited competing products in media publicized in November 2008. The complaint attaches two contracts and an E tabloid pictorial under an August 17, 2010 date, showing Paris drunk. The complaint says the company has paid Paris $3.5 million and expected her proper performance to gross it $35 million or more. It wants the payment back, the losses reimbursed, and unspecified punitive damages on top.

The complaint is as bizarre as the story and people it portrays. Read the rest of this post »

  August 24, 2010 at 9:14 pm   Posted in: Contract Law & Beyond, Culture, Current Events, Tort Law, Weird   Print This Post   No Comments

When Orin Kerr Is Equivocal About My Arguments, I Get More Inbound Traffic

posted by Dave Hoffman

Orin has a series of posts about explaining why brilliant people happen to agree with him, while people with disagree with him are acting in bad faith. I have noticed this phenomenon myself, but wanted to explore a weird variation of it.  When people like Orin are ambivalent about something I’ve said, I am much more likely to get inbound traffic to Concurring Opinions. When people like Orin agree with me, by contrast, they may link but say what I said better, sucking up eyeballs. People like Orin rarely disagree with me, but when they do, they probably feel pretty bad to be so very wrong.

  August 17, 2010 at 9:26 pm   Posted in: Weird   Print This Post   2 Comments

Tear-Jerker in Case of Lottery-Winning Octogenarian Sisters

posted by Lawrence Cunningham

Widely reported as a feud over a half-million dollar winning lottery ticket between two octogenarian sisters, close friends their first 70 years, it turns out to have been a fight over a $250 debt.   In 1995,  Terry Sokaitis and Rose Bakaysa, each now close to 90 years old, signed a written agreement saying they were partners in a longstanding and fun gambling program, winnings to be split equally.  In 2005, a lottery ticket Rose bought with their brother won $500,000.  Terry wanted her share but Rose refused.  Rose said they rescinded the 1995 deal during a heated 2004 telephone argument. 

Within weeks, Terry sued Rose for breach of contract. In court, Rose also argued that any deal they had was unenforceable because it amounted to an illegal bargain under state anti-gambling statutes.  As I reported, the Connecticut Supreme Court resolved that narrow issue against Rose, showing how the ancient statute was functionally superseded by a host of legalized state gambling that put contracts to split lottery ticket winnings outside its scope.   Back in the trial court, five years after Terry sued, Rose asserted the rescission defense and after a trial in the spring, a judge found that rescission valid.

The unreported opinion adds details to this sad tale, sisters tight for 70 years, through marriage, illness, and all, turning bitter when they couldn’t agree on whether Rose had loaned Terry $250 or $100, and over whether Terry had any money to repay her.  During the heated talk that resulted, Terry yelled that she didn’t want to be Rose’s gambling partner anymore and Rose said okay.  The sisters haven’t spoken since.  That Rose won the half million with their brother a year  later seems to have sealed the bitterness.  In her opinion after trial, Connecticut Judge Cynthia Sweinton reprints a letter Terry wrote Rose as their legal battle intensified.  It’s a tear-jerker, be warned, but it follows. (I have corrected some spelling and grammar mistakes.)

Judge Sweinton, before concluding her opinion, wrote resonantly: “There is something in this tragedy that touches most people. While the court may be able to resolve the legal dispute, it is powerless to repair the discord and strife that now overshadows the once harmonious sisterly relationship.”

Read the rest of this post »

  August 16, 2010 at 4:22 pm   Posted in: Contract Law & Beyond, Law Talk, Psychology and Behavior, Weird   Print This Post   No Comments

Dystopian Fiction Intersects with the Academy

posted by Frank Pasquale

Gary Shteyngart’s new novel, Super Sad True Love Story, looks to be every bit as good as Absurdistan. It’s a dystopian, futuristic work. In a radio show, Shteyngart was asked how far in the future the novel was set, and (without missing a beat) he replied “next Tuesday.” Consider the following from Michiko Kakutani’s glowing review of the book (and the links to various legal and policy thinkers), and judge for yourself:

It’s a novel that gives us a cutting comic portrait of a futuristic America, nearly ungovernable and perched on the abyss of fiscal collapse. . . .“Super Sad” takes place in the near future, and Mr. Shteyngart has extrapolated every toxic development already at large in America to farcical extremes. . . . Books are regarded as a distasteful, papery-smelling anachronism by young people who know only how to text-scan for data, and privacy has become a relic of the past.

Everyone carries around a device called an äppärät, which can live-stream its owner’s thoughts and conversations, and broadcast their “hotness” quotient to others. People are obsessed with their health — Lenny works as a Life Lovers Outreach Coordinator (Grade G) for a firm that specializes in life extension — and shopping is the favorite pastime of anyone with money. . . .

The United States is at war in Venezuela, and its national debt has soared to the point where the Chinese are threatening to pull the plug. There are National Guard checkpoints around New York, and riots in the city’s parks.

Shteyngart mentioned Ray Kurzweil and Aubrey de Grey in an interview as influences on the book’s futurism. I hope some of the ideas in the links above percolated in as well.

  July 27, 2010 at 7:30 pm   Posted in: Health Law, Humor, Politics, Privacy, Privacy (Gossip & Shaming), Technology, Uncategorized, Weird   Print This Post   2 Comments

Nobody Expects the Singularity

posted by Frank Pasquale

“I don’t want to achieve immortality through my work,’ Woody Allen said, “I want to achieve it through not dying.” The “Singularity University” is attracting Silicon Valley glitterati who think along the same lines:

[T]he Singularity — a time, possibly just a couple decades from now, when a superior intelligence will dominate and life will take on an altered form that we can’t predict or comprehend in our current, limited state . . . [will lead to a world where] human beings and machines . . . so effortlessly and elegantly merge that poor health, the ravages of old age and even death itself will all be things of the past.

Some of Silicon Valley’s smartest and wealthiest people have embraced the Singularity. They believe that technology may be the only way to solve the world’s ills, while also allowing people to seize control of the evolutionary process. For those who haven’t noticed, the Valley’s most-celebrated company — Google — works daily on building a giant brain that harnesses the thinking power of humans in order to surpass the thinking power of humans.

Ezra Klein skewers the techno-utopianism, toying with the idea that we may well be robotized before we get electronic medical records:

Right now, one of the top stories on the New York Times site is about how human beings are going to become people-computer hybrids and live forever and that vision actually seems semi-plausible until you realize that all the information about the operation to download your memories into a Macintosh will probably be kept in a manila folder in a large filing cabinet, and then it doesn’t seem so likely.

But Klein neglects the trends toward tiering in the medical system, which may well continue forking into “upper decks” where anything is possible and nether realms of penury. As Andrew Orlowski comments, “The Singularity is . . . . rich people building a lifeboat and getting off the ship.” I think that progress in bioethics depends on a rejection of that kind of thinking in favor of a more solidaristic orientation toward the needs of the worst off. As I stated in 2002,

We are all disturbed by hypothetical dystopias like Huxley’s Brave New World. But their most important flaws – the inequality, degradation, and moral irresponsibility of their inhabitants – are already apparent in [some aspects of life in the] world’s wealthiest nations[, which] spend hundreds of millions of dollars on elaborate technologies of life-extension, while contributing much less to efforts to assure basic medical care to the poorest. Public debate on regenerative medicine must acknowledge this inequality. Societies and individuals can invest in it in good conscience only if they are seriously committed to extending extant medicine to all.

If “Singularity University” turns out to be a prime philanthropic initiative of the Google guys, while the Bill and Melinda Gates Foundation sticks to “progress in fighting hunger and poverty,” I know which tech company I’ll be rooting for.

  June 16, 2010 at 12:05 am   Posted in: Bioethics, Culture, Current Events, Law and Inequality, Technology, Weird   Print This Post   7 Comments

Law’s Titles

posted by Dave Hoffman

It’s been a busy summer so far, with a presentation at LSA under my belt, and lots of research still to come.  But I’ve been distracted of late with a pesky pedantic thought: which jobs that lawyers can aspire to create titles which survive the position?  That is, you’ve retired or left your official position.  Do the relevant norms allow you keep using the title?  I looked an unrepresentative sample of mainstream media articles.

• Justices:  Now and forever.  State courts justices get demoted to “judge“, but it’s better than nothing.
• The Solicitor General: “General Kagan” now, “Justice Kagan” in a few weeks, Elena to friends.  But more generally, it looks like the former S.G.s (Fried, Olson, Clement, etc.) lose the title when they lose the job.
• Attorney General:  It’s an awkward title, so at most the holders are called “former A.G.”
• Professor: Er, there’s such a thing as losing your job as a professor? Regardless, you seem to get to keep the title, if not the cash.
• SEC Commissioner:  It depends.  If you move into private practice, you seem to lose the title. If you move into academia, you gain a new one.

It’s a weird phenomenon.  To me, the titling of former judges looks like the exception, not the rule.  What am I missing?

  June 2, 2010 at 7:06 pm   Posted in: Sociology of Law, Weird   Print This Post   7 Comments

Computers 1, Tradition and Wonderful Scholarship: 0

posted by Dave Hoffman

A fishing cooperative in Japan has banded together to sell their catch before they return to port by uploading pictures as soon as the fish is on board.  Tech blogs, naturally, are supportive:

“Fishermen’s benefit: no fish broker nor auction market process is required. Buyers’ benefit: fish and seafood you’ve ordered on the website before 9am will be delivered to your home within the same day. (It is expected to be delivered within 12 hours from being caught by fishermen to a consumer’s kitchen.)   C.O.D. available.”

Well, sure, it seems efficient.  But the process, taken to its logical extreme, may threaten to render obsolete the world’s most important fish auction market and its resulting dispute resolution system, well-captured by Eric Feldman’s wonderful 2006 paper on the topic, The Tuna Court: Law and Norms in the World’s Premier Fish Market.  As you may recall the abstract: “Tokyo’s tuna merchants make use of a highly specialized court created by the state – the Tuna Court – that follows formal rules and procedures that are contained in a government ordinance. The supposed disadvantages of legal rules are nowhere apparent. The Tuna Court is fast and inexpensive, and the process of articulating and resolving claims serves to strengthen individual relations and the cohesion of the market community.”

Ah, the good old days of 2006, when tuna and chicken (the very young and the merely broiler-sized) both required people to judge them.

  April 29, 2010 at 11:36 pm   Posted in: Technology, Weird   Print This Post   3 Comments

Apple does its part to battle terrorism

posted by Nate Oman

Today in my contracts call we were looking at boilerplate and the problems of contracts of adhesion.  After class one of my students pointed out to me that buried in the fine print of its iTunes Store Terms and Conditions is a clause where Apple is doing its bit to foster non-proliferation.  Clause 34(g) declares in part

You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.

Notice, as I read this clause not only are terrorists — or at least those on terrorist watch lists — prohibited from using iTunes to manufacture WMD, they are also prohibited from even downloading and using iTunes.  So all the Al-Qaeda operatives holed up in the Northwest Frontier Provinces of Pakistan, dodging drone attacks while listening to Britney Spears songs downloaded with iTunes  are in violation of the terms and conditions, even if they paid for the music!

That’ll show ‘em…

(Unless, of course, they can argue that the clause violates the reasonable expectations doctrine.  I mean, don’t we assume that when we download iTunes that we’ll be able to use it construct a nuclear missile?)

  February 9, 2010 at 6:59 pm   Posted in: Contract Law & Beyond, Weird   Print This Post   20 Comments

Movies Inspired By Law Review Articles

posted by Dave Hoffman

Gerard’s post about the worst movie about constitutional law inspires me to ask the following question: has there ever been a movie inspired by a law review article?  I can think of at least one book (by a law professor) that inspired a movie (on television).  But I can’t think of an article in a student-edited journal that inspired a wide-screen release. Can you?

  January 26, 2010 at 3:30 pm   Posted in: Law School (Law Reviews), Weird   Print This Post   3 Comments

Inbox Zero

posted by Dave Hoffman

Several months ago, I was persuaded by this post by Andrew Gelman to try a new productivity method: “I will never again read an email without immediately handling it.” (There’s a whole blog on this topic.  And  nifty video.)  The idea is to prevent bloat in your inbox by keeping it empty.

Here’s the short report on how it’s going.  Not terribly well.  I’m getting better at dealing with the easy emails, but the scholarship-related long term projects are just sitting there like lead balloons.  (e.g., “how would this revision look,” or “here’s are some R-scripts. check them out when you’ve time”.)  Moreover, I now have created tons of subfolders to shunt incoming mail to (e.g., “friends,” “enemies,” “colleagues who are neither friends nor enemies,” “students who need to learn courtesy”, “SSRN abstracts I wish I’d written”).  This reminds me of how I cleaned my room as a little boy: move everything on the floor to under the bed.

I nominate this thread as an open one to discuss ways lawyers and legal academics handle the daily deluge.

  November 29, 2009 at 6:45 pm   Posted in: Weird   Print This Post   4 Comments

Shame on the Brits!

posted by Nate Oman

By temperament, I am not a particularly passionate person. Every so often, however, the world throws up an event of such mindless horror that even phlegmatic me is roused to ire. Chris Lund points out such a horror in this post over at Prawfs. All I can say is, “What the hell are their Lordships thinking over at the new Supreme Court of the United Kingdom?” Shame! Shame on you! Read the rest of this post »

  October 22, 2009 at 7:50 am   Posted in: History of Law, International & Comparative Law, Jurisprudence, Just for Fun, Law Practice, Politics, Weird   Print This Post   3 Comments

Burglars Like Facebook, Too

posted by Danielle Citron

Facebook offers much to law enforcement, perhaps more than many might think.  Last week, a Pennsylvania man was arraigned for felony burglary, having allegedly broken into a woman’s home and stolen jewelry.  The defendant seemingly played a big role in ensuring his capture: he checked his Facebook page during the burglary.  The victim noticed that the defendant’s Facebook account appeared on her computer after the burglary.  No joke.  This takes harming oneself through social networking to a new level.

  September 22, 2009 at 11:53 am   Posted in: Anonymity, Criminal Law, Privacy, Privacy (Consumer Privacy), Privacy (Law Enforcement), Technology, Uncategorized, Weird   Print This Post   No Comments

Gaming, Depression, and the CDC: Thanks Ars Technica

posted by Deven Desai

Several news outlets are covering the hyped notion that gamers tend to be overweight, 35, and depressed. The first thing that crossed my mind was this fact: it was conducted in the the Seattle-Tacoma area. Wow, people in MSville which is known for no sunlight, coffe-compensation techniques, and a great era of rather depressing music (i.e., grunge for you youngsters) might not go outside and might exhibit depression? I poked around and Ars Technica has a nice article about the flaws in the study which apparently admits “The fact that the sample was drawn from a population concentrated in western Washington State and from an Internet-based panel may limit generalizability of the results.” The full study is here. I could go on, but the Ars article covers the oddity rather well. Score one for Ars and thanks for noting the nuances in the study.

  August 21, 2009 at 8:55 am   Posted in: Weird   Print This Post   2 Comments

The Law Gives Up on Beatty Chadwick

posted by Dave Hoffman

Two years ago, I noted that H. Beatty Chadwick was about to spend his thirteenth year in a Pennsylvania jail for civil contempt, arising out of his failure to comply with a 1995 order to turn over assets in a divorce litigation.  I opined that:

Unless circumstances change, Chadwick will die in jail to preserve an idea: even civil law must be obeyed. As Robert Cover wrote, “Legal interpretation takes place in a field of pain and death.”

So, I guess that Cover needs to be footnoted: “Except when judges blink.”  Beatty is out.  And his jailers are celebrating:

About 35 prison staffers gathered yesterday – some crying and hugging Chadwick – to say goodbye to the “model inmate” who had worked in the law library and forged friendships with everyone from guards to senior administrators, said prison Superintendent John Reilly.

“He’s done more time than maybe the majority of people convicted of homicide do,” said Reilly, a former prosecutor. “What person in his right mind is going to flaunt the authority of the court and say, ‘I’m going to spend the rest of my life in jail?’ People just aren’t made that way.”

Maybe so, but that claim seems to be another example of how we routinely ignore the tremendous emotional investment people have in being vindicated by courts.  As far as I can tell, the state courts of Pennsylvania have not abandoned their factual finding that Chadwick had the money and refused to comply with their order. They’ve just concluded that his ornery will would never bow to any legal pressure.

But just because the judges of Delaware County gave up on compliance doesn’t mean that Chadwick has paid his debt to the courts, his ex-wife, or society at large.  His conduct (as alleged) created a social harm which his ultimate freedom only made worse.  As the  attorney for Chadwick’s ex-wife pointed out, “[h]ere’s a guy who thumbed his nose at a court order for 14 years … There should be some kind of sanctions for doing that.”

  July 27, 2009 at 7:36 pm   Posted in: Behavioral Law and Economics, Criminal Law, Family Law, Law and Psychology, Weird   Print This Post   4 Comments

I’ll Pay You $1,000,000 if this Blog Post is Wrong

posted by Dave Hoffman

Contract professors are excited by this lawsuit out of Texas, in which law student Dustin Kolodziej sued Orlando attorney Cheney Mason for failing to pay up on a boast he made while being interviewed on Dateline.

NBC‘s Ann Curry asked whether there was enough time for [Mason's client] to commit [a crime]. An unidentified person said, “The defense says no.”

“I challenge anybody to show me,” Mason said. “I’ll pay them a million dollars if they can do it.”

Kolodziej did it, though some quick driving, and he now wants his million dollar reward, under a theory of a breach of a unilateral contract.

The case isn’t frivolous per se, but it is unlikely that Kolodziej will make it past summary judgment.  This seems like a textbook example of a boastful puff which no reasonable person in Kolodziej’s shoes would believe constituted an offer.  As in the new casebook classic Leonard v. Pepsico, Inc., 88 F. Supp.2d 116 (S.D.N.Y. 1999), a judge will likely note that the setting (directed at the world, not to a particular person), the offeror’s role (hyperbolic advocacy), the nature of the communication (a  “challenge”), and the amount involved (disproportionate to any gain to the offeror) all combine together to destroy the requisite seriousness & formality that distinguish offers from puffs.

Throwing the case out is the right result.  Ordinarily courts rely puffery doctrine too often – harming  consumers who have relied to their detriment on sellers’ optimism.  But here, as in Pepsico, Kolodziej seeks to force a contract on Mason, or at least a settlement.  Gotchya contracts like this don’t fit well in any theory justifying enforcement.  As an extra weight on the scale here, contractual enforcement would chill a defense lawyer’s efforts on behalf of his client.

This isn’t to say that all publicized rewards are unenforceable.  Kodak has just offered $5,000 to some poor kid who failed to meet Megan Fox.  Unlike Kolodziej’s case, there is only one potential offeree, the offer is accompanied by a way to communicate acceptance, the amount is reasonable, and Kodak’s goal (to document how a “photograph can connect and change the lives of two complete strangers”) is commercial and understandable.

In the event that you do disagree with me, either about the specifics of the post or about puffery more generally, you are on notice that the title of this post is a joke.

  June 24, 2009 at 7:22 pm   Posted in: Contract Law & Beyond, Weird   Print This Post   6 Comments

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