Author: Miriam Cherry


Australia: A Movie About Contract Law

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.

[Cross Posted at ContractsProf]


The Law of Thanksgiving

Was thinking about the Macy’s Thanksgiving Day Parade a little earlier, and made me realize that there has yet to be a treatise on the law of parades. One of my colleagues once wrote her torts exam about large balloons escaping and causing property damage. Or, perhaps more widespread, there is that oft-cited and always chilling “Parade of Horribles.” (makes me shudder just to think about it).

Further, my co-blogger at ContractsProf, Meredith Miller, has a great post up about the law of the turkey. In fact, she facetiously claims she will be writing an entire book on the topic:

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.”

Happy T-Day everyone. Cheers!


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, yet 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 understands 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 experiences with the accidental reply, and I can speak about this 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 an 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?

[cross-posted at ContractsProf]


Oft-Overlooked Legal Writing Genres III

After considering statutory poetry, the law review cover letter, and the nastygram, consider two more muted, oft-overlooked genres of academic legal writing:

Course Descriptions. Earlier this semester I was discussing the “standard form” for course descriptions. Part of this is clarity: how many hours is the class, what subjects does it cover, and what graduation or certificate requirements does it fulfill? The standard, I think, is to err on the side of “timeless” writing, since who-all knows when course catalogue descriptions will be revisited. Of course, the conflicting impulse here is to make the course description really “whiz bang,” especially if the course has been approved on a provisional basis and you really want to attract students. Not to mention that the space limitations and the need to be inclusive and representative of what you may do in the class (often before you’ve ever taught it) make this a difficult blurb to write.

The External Review Letter. I received over twenty of them related to the promotion to full professor (now, after the faculty vote, happily exhaling… :). Ostensibly, the goal of these letters is to evaluate the candidate’s work fairly and to comment on its contribution to the field, creativity, and analytical ability. Most letters begin with a summary of the article – what does it cover, what is the argument – set out the positives, add a few small “quibbles” here and there, and then return to the positives. At least, (luckily), that was my overall experience.

Of course, there is always that wild card that you hear about but hopefully do not have to experience personally, that is the reviewer who decides that the process is not really about the candidate, or even a negative yet constructive evaluation, but rather is to show that s/he is smarter than everyone (not just the tenure candidate, or the candidate’s committee) but, literally, everyone. In the world. (Our young, mmm-mmm, they are so tasty…).


Wearing One’s Heart on One’s “Sleeve”

Recently I read this quick little “work manners” piece about tattoos in the workplace. I’ve read a few other things that seem to indicate that a number of employers are asking workers to cover up their tattoos – obviously a difficult or impossible task if the tattoos are on the worker’s face or hands. Seems inevitable that some of this will result in dismissals, and then the following litigation.

I suppose this fits into the literature developing about employers and evolving standards of dress and grooming in the workplace. Courts have tended to defer to employers on these standards, (even though some of the rationale of those cases is difficult to justify). Given that, and the at will rule, I have a feeling that many claims may end up being couched as discrimination in order to show a congnizable claim. In other words, someone will try to argue that this is discrimination against skin color – if it’s wrong to discriminate against someone who has a particular color of skin overall, isn’t it also wrong to discriminate against someone who has many different colors of skin, based on his/her tattoo?

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Asking the “Right” Questions

Over the weekend, I attended a thought-provoking conference put on by the Discrimination Research Group, graciously hosted by Deborah Rhode at Stanford. There were a number of disciplines represented, including economists, psychologists, sociologists, and business school faculty. The conference was interesting because it put the explanations of “why” to the side for the moment, and instead focused on providing the “how” of empirically documenting some of the outcomes in employment discrimination cases. From the lawprof side, I especially enjoyed the insights of Tanya Hernandez (GW) on diverse workplaces and Susan Bisom-Rapp (Thomas Jefferson), who commented on the international aspects.

For me, though, and I’m still putting this together for myself, one of the “bigger picture” insights coming out of the conference was about values, change, and paradigm shifts. It started with the subject of the conference, employment discrimination, and asking whether diversity improves the bottom line. In other words, on purely an economic basis, can a “business case” be made for diversity in the workplace? The example used at the conference – an intriguing one, I think, especially because I teach business associations as well as employment law – is the shift to “green businesses” to create further economic gains. But is a shift to “green business” for the sake of further economic growth a mask for any kind of change? If the point of having green businesses is just to increase consumption of other sorts, then perhaps the paradigm itself is flawed. Do we only save the environment when it’s good for business, or do we do this at other times when it requires sacrifice because there are other values that matter? The same set of questions, I think, can be asked in relation to diversity at work.


Gaming in the Law School Classroom

Lately I’ve been thinking, not just about game theory (one passion of mine), but also about using games in the law school classroom. (And, no, not the usual “mindgames” ;). My research on work and labor & employment law in cyberspace is increasingly looking at the blurring line between work and leisure. As described by psychologist Mihaly Csikszentmihalyi, we do better work when we enter “flow” states, in which we are totally absorbed by what we are doing, and improve our concentration in the process. If work is meaningless, or unfocused, it can become drudgery. Turn it into a contest, and those same tasks that were earlier a drag can become downright fun. We all inherently know this; we’ve had situations in which the right frame of mind came make even the most boring task enjoyable.

Helping a class review for an exam or paper is no different. Jennifer Martin (Louisville) has set up a wonderful jeopardy template in powerpoint, which she demonstrated at the contracts conference two years ago to great effect. The game is fun and I’ve adapted it for successful use in my contracts class, too. The students enjoy getting into teams and competing for the right answer, meanwhile getting a great end of the semester review. Paul Caron (UC) and Rafael Gely (Mizzou) have written an article about the “clicker technology,” which enables you to poll the class on different multiple choice questions. I was at first hesitant to try this (I wouldn’t have liked a pop quiz every day when I was a student), but when my-then colleague at Cumberland, Ed Martin, convinced me that the students actually liked having concrete and instantaneous feedback, I decided to give it a try. What’s great about the clickers is that it forces the students to engage; they must become active participants in the learning process. My legal writing colleague, Ed Telfeyan, started a “grammar bee” to correct some of those little writing hobgoblins that 1Ls (heck, all of us!) could do better with. I have some other learning games up my sleeve, too, and am curious to see which ones you use (if at all) to spice up your classroom experience.


Paging the Bogeyman

It’s Halloween, and I wanted to write a related post to celebrate the day. I thought about resuscitating the “sale of a haunted house case,” Stambovsky v. Ackely, 572 N.Y.S.2d 672 (NY App. Div. 1991), fast becoming a casebook darling among property and contracts professors (great post on it here). Maybe some gruesome details from a crim law or torts case? But then I realized I needed a *really* scary topic. And, no, not the credit crunch, frightening as that may be.

As far as scary, I started thinking about my favorite Halloween movie, The Nightmare Before Christmas. So, how about… the Bogeyman? Now, I previously wrote a post, asking about the “elephant” lurking in your law school. By “elephant,” I meant a problem that is immense and yet “so common that no one talks about or discusses it.”

The Bogeyman, on the other hand, is different than the lumbering elephant. The Bogeyman is a symbol or a rhetorical strategy that is an exaggeration of a perceived threat or possible risk, usually raised in response to proposed change. For an example, take curriculum reform. If change is proposed, one rhetorical strategy to scotch it is to exaggerate the threat of a potential drop in the bar passage rate. Sometimes the Bogeyman quietly hides in corners, dormant, seemingly disappeared. Other times he jumps out, becoming more vocal, rattling his chains to great effect.

I wonder if some of this propensity to be-risk averse is part of profession – as lawyers we perhaps overcompensate for certain types of risk. Despite all the talk this election cycle about how much we either love “change” or “mavericks,” (depending on your ideological views), it’s safe to say that many (most?) law schools are, as institutions, fairly conservative (as far as changing things, anyway).

So perhaps change and an exaggerated tendency to be risk averse is in itself the Bogeyman. Its enemy? Logic. Empiricism. Bogeymen, I think, hate statistics, because it is in their nature to be irrational and play upon one’s fears.

What/Who is the Bogeyman in your law school? (or Bogeyperson, more politically correct).


Teaching the Financial Crisis in Business Associations

The legal blogosphere (with good reason) has been so abuzz (ablog?) with the financial crisis that I felt adding my two cents might be overkill (I’d add links to all the good blog posts, but figure it’s just easier for you to scroll down and read them).

I will say, though, that teaching Business Associations this fall has been fascinating yet challenging because I’ve really (really, really!) wanted to spend time talking about that lumbering elephant swinging its trunk and trying to get into my classroom. At the same time, of course, we have to go through the basic doctrines – choice of entity, piercing the veil, shareholder primacy, etc., etc.

I have been striking a balance by having a few limited discussions of the root causes of the crisis, and to use it as a way to discuss matters already raised, including conflicts of interest, excessive risk, and principal-agent problems. I am also using this as a vehicle to explain “short sales,” and giving an introduction to some of the broad outlines of securities regulation that I examine later in the course. My students also analyzed the initial text of the Bailout Bail (the rather alarming short version), and they write short “response papers” to stories in the W$J.

While you don’t want to ignore that rather large creature with wrinkly gray skin, I also don’t want to do much more. I remember spending 99% of my legal ethics class (w/A. Dershowitz) discussing the ethics of the then-pending Clinton impeachment. It was a stretch, and only manageable because of who the professor was. How do you incorporate current events into the classroom?


The State of Email Bankruptcies

It’s been roughly four years since Larry Lessig called attention to the problem of so-called “email bankruptcy,” described in this article in Wired Magazine. Essentially it’s a type of sheer volume overload, where it becomes so overwhelming that the recipient “gives up” even trying to respond to the messages. In this case, the recipient sent out an automated message notifying the senders that they should not even attempt a reply.

Part of this is that Professor Lessig is a visionary and very popular, and the same could be said of any well-known “public intellectual” figure (our very own set of celebrities!). But I think this question is still lurking four years later: how do you deal with the creeping numbers of emails? I’m not talking about spam, but more just large volume from people you do know or should know or have some responsibility to.

I have a mixed relationship with email. I wonder if this is partially an age/lifestyle question. I went through high school without having an email account, only to go to a college where the phone sat unused and dates were made by sending a flirtatious email (far easier than getting up the nerve and getting past the awkwardness to ask out/be asked out in person!) All through law school, email was “fun.” I used to joke about my email addiction; partially I think the addiction is that it is a gamble – you never know what might turn up in your inbox. That long-lost friend gets in touch, someone starts a “flame” war, you get news of a breaking case.

Somewhere in there, working for the firms, actually, email (and keeping it up with it) turned into something to be “managed.” Step away from the computer to talk to someone and you might miss an entire conversation. Further, as easy as it is to insult someone on email (forget about tone), it’s equally as easy to insult someone by not replying at all, or in some cases replying late (if s/he really cared, my message would be opened rapidly and with glee).

I wonder though, if some of us don’t go through varying phases or cycles of email bankruptcy (perhaps selectively so). How many of us keep email open all day? Check emails from the phone? Read email only on weekdays? Read emails only during certain hours in the day? Print all their email out and mark it up (someone down the hall from me actually does this)? Check emails while on vacation? Go through a month where you answer only minimal emails only then to become very chatty the next month?

It is probably not the most efficient to keep email open all the time, but I always have had an email addiction, so I do that three or four days of the week when I’m working. I do try to prioritize student emails to make sure that they are getting answers fairly quickly, although that gets difficult when you have a Business Associations class approaching 100 students.

Are norms and best practices and efficiencies coming into place for this? Do any law schools have guidelines or suggestions for those who are getting overwhelmed? I ran into some short self-help articles and I’m sure if I went to the business section of the library or local bookstore I could probably find many general materials on effective use of email. But what about the law firm and specifically law school environments. Are there any special characteristics that might lend themselves to best practices there?