Category: Weird

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Bad Words: Arbitratable and Arbitrability

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.

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“Exploiting” Lady Gaga: Technical Diction Cringe

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.

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Is Hairtech’s Paris Hilton Complaint a Joke?

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 More

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

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.

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Tear-Jerker in Case of Lottery-Winning Octogenarian Sisters

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.”

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Dystopian Fiction Intersects with the Academy

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.

Nobody Expects the Singularity

“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.

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Law’s Titles

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?

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Computers 1, Tradition and Wonderful Scholarship: 0

The Person In This Picture May Soon Be Replaced By a Hologram

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.

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Apple does its part to battle terrorism

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?)