Learning Contracts through Current Events: A Book Review of Prof. Lawrence Cunningham’s Contracts in the Real World, Stories of Popular Contracts and Why They Matter
In Contracts in the Real World, Stories of Popular Contracts and Why They Matter, fellow blogger Prof. Lawrence Cunningham explores the terrain of contract law through current events. His decision to use the contracts of modern celebrities to illustrate contract law principles is an inspired choice that will appeal to today’s law students and contract law experts alike. The book guides the reader down the well-trodden path of the common law’s chestnuts, but makes the doctrines come alive by applying them to modern, celebrity-laden contexts. Happily, the book reads much like Marvin Chirelstein’s classic primer – it is easy-to-read and clearly written. Cunningham adds rollicking celebrity stories to the mix, simultaneously educating and entertaining readers and encouraging us all to ponder the ability of current doctrine to address the increasingly complex issues caused by rapid technological innovation.
Along the way, readers will meet many celebrities, from intellectuals such as poet Maya Angelou and the late Dr. Martin Luther King, Jr., to the controversial and fame-seeking, like Paris Hilton, Donald Trump, and Charlie Sheen. Professor Cunningham also deftly analyzes some of the notable contract law issues arising from the global financial crisis and the Bernie Madoff scandal.
From the start, the stories immediately grab the reader’s attention, turning ancient questions of consideration into a lively discussion of the ownership of Martin Luther King, Jr.’s archives. The chapter provides insight into the ambiguous language surrounding King’s papers left with Boston University, the school that awarded him the degree making him “Dr. King.” Cunningham then turns to offer and acceptance, particularly mutual assent and offers made in jest, based on Leonard v. Pepsico, the recent “Pepsi Points” for a harrier jet case. The chapter finishes with mutual assent, by reviewing the peerless ship case, Raffles v. Wichelhaus, and then applies the concept of objective intent to several internet contracting cases, including Specht v. Netscape and ProCD v. Zeidenberg.
Chapters Two and Three focus on defenses, including unconscionability, public policy, mistake, impossibility, and infancy. While Chapter Two begins with an ordinary case as an example, it quickly returns to more celebrity-friendly terrain. Raising issues of the bounds of the law and unconscionability are the attempted blackmail of David Letterman, a palimony lawsuit against rapper 50-Cent, and two octogenarian sisters agreeing to split gambling winnings. The Baby M case, with its multi-dimensional discussion of contracts against public policy, completes the chapter. Chapter Three begins with mistake as applied to a divorce where a portion of the divided joint assets disappeared in Bernard Madoff’s notorious ponzi scheme. Other stories in this section use celebrity contracts to great effect; impossibility includes Donald Trump’s attempts to cancel a contract via a force majeure clause, while Craig Traylor of “Malcolm in the Middle” takes center stage in illustrating infancy. The chapter ends with the contracts and defenses in the AIG bonus scandal and stadium sponsorship contracts involving Enron and Citi.
Chapters Four and Five turn to remedies. Celebutante Paris Hilton plays a leading role in the discussion of damages, as she was alleged to have breached contracts for various promotional appearances for a movie and hair extensions. Mitigation and the lost volume seller both receive a thorough and interesting treatment via the Washington Redskins’ pursuit of breaching season ticket holders, despite that they could presumably resell some of them. Restitution focuses on the development of The Sopranos and whether one of the contributors of ideas had a right to a share of the profits. The chapter ends with the off-contract remedies awarded when rock singer Rod Stewart was unable to perform in Las Vegas due to vocal chord problems.
Chapters Six, Seven, and Eight deal with contract interpretation, the implied duty of good faith, and conditions. The heated debate over rapper Eminem’s recording contract provides a fantastic illustration of what happens when new technologies – ringtones and iTunes downloads – are invented after the contract was signed. Best efforts clauses benefit from poet Maya Angelou’s disagreement with promoter Butch Lewis over licensing her poetry to Hallmark. The closely watched dispute over the timeslot of comedian Conan O’Brien’s show demonstrates material breach and adjustment. Conditions and waiver, or estoppel, benefit from the example of troubled actor Charlie Sheen and his drug-fueled antics. Finally, the book ends – as most contracts books do – with the obligatory chapter about third party beneficiaries. This chapter is timely and important, thanks to its use of Wal-Mart’s ongoing labor disputes and discussion of how third-party beneficiary doctrine might be helpful in analyzing those issues.
In terms of theory, Cunningham characterizes the schism in contract law as a dispute between formalists and realists. He walks a tightrope between these camps, often referencing contract law’s “sensible center,” noting that the rules that have evolved over the years allow for practicality and balance. In essence, he makes a case for the status quo, eschewing reform in either the direction of increased or decreased government intervention in contract, but gives the reader the information to decide this matter for him or herself. Cunningham’s book raises interesting questions that will cause the reader to ponder the existing state of contract law, especially when applied to issues created by modern technology. I know that it definitely made me think about these larger issues and contemplate whether the old common law doctrines can adequately cover the changes arising from technology.
Overall, the book covers a vast scope of issues and doctrine, inviting its readers along for an intellectual journey through the field of contract law. Highly recommended!