Monday, September 30, 2013

Selected Poems on the Law of Contracts

The Library at Indiana University Maurer School of Law makes available for us a 1991 NYU Law Review article written by Indiana Law professorDouglass Boshkoff entitled "Selected Poems on the Law of Contracts."   The poems, actually limericks, were discovered as part of a library inventory.The author is anonymous. But even so, short as they are, they help breathe life into otherwise dull casebook analysis.  Click the link above to read them all. Here is an example:

Sherwood v. Walker
We've all heard the story of Rose
Whose failure to bear was a pose.
"For the stew pot, I'm not,"
Said Rose, like a shot.
And the court held the deal couldn't close.

Recently this blog featured material on Wood v. Lucy Lady Duff Gordon. Here is another nugget:

Wood v. Lucy, Lady Duff-Gordon
For dresses, no other was finer
Than Duff-Gordon, the lady's designer.
But Cardozo was short
With her counsel in court,
Thinking D-G was merely a whiner.

If you would like to read the follow-up article "More Poems on the Law of Contracts" published in the Northwestern Law Review, you will have to order a copy from Lexis Nexis.

Friday, September 27, 2013

An Engaged Classroom

This isn't law - but something is going on in this classroom that students are remembering.

Wednesday, September 25, 2013

Law's Mixed Messages

The Department of Homeland Security has been running an ad campaign around the catch phrase "If you see something, say something."  While not "law" in a strict sense, the campaigns promotes an official governmental policy encouraging people to come forward when something suspicious is observed.

Recently a patron of a bank in Glastonbury, Connecticut spotted a man carrying a gun.  He notified bank employees. The gun toter turned out to have a valid carry permit.  So, the police charged the customer who spoke up with breach of peace for upsetting the bank employees.

Apparently, the new policy message is, "If you see something, keep your mouth shut or answer for it in court."

UPDATE 9/26/13: The Hartford Courant reports that the state has declined to prosecute the charges.  This article also gives more details about what happened that justify the actions of the police:
Mr. Gursky apparently wrote a note "man with a gun" and attempted to show it to a teller while saying "gun." He apparently then left the bank taking the note with him even though the teller had not yet seen it.  He did not wait around to make any explanation to any other bank personnel or the police officers who were on the way as a result of the teller's call.

To me, these facts sharpen the analysis on the way law works.  If the law works by sending messages, then the way those messages are presented to the public is an important element of "the legal system." In essence, that makes the media part of the legal system.  If the media chooses to under-report facts in an effort to make a story sound more exciting or interesting to read, then the message that gets sent is different than the one that would have been received if all the facts were reported.  In this case, as first reported (see the video below), the law enforcement action seems ridiculous. Then bloggers, like me, pick up the story, repeat it as it as been reported, and pretty soon the internet is abuzz with a story about how inconsistent and ridiculous the law appears. With more people getting their news on line or from twitter, there is even more incentive for media to make stories shorter and more intriguing to draw readers. If shorter and more intriguing means "incorrect" and "misleading," then that exacerbates a problem of eroding legal legitimacy.

If the law's legitimacy depends on the respect of the people, and that respect can be manipulated by the way the law is reported by the media, then isn't some portion of media studies a legitimate part of legal studies. Perhaps we should be teaching "The Legal and Ethical and Public Environment of Business;" including media studies, interest group politics, legislative law-making and public perception.  The new AACSB standards require that business students have an understanding of the political environment of business as well as the regulatory.  Who is teaching that?

Tuesday, September 24, 2013

No Laughing Matter

The LSCB previously commented on the trials of comic Vince August, a/k/a South Hackensack, New Jersey municipal judge, Vince Sicari. Previously ordered by the State Ethics Board to give up one of the jobs, Vince appealed to the state Supreme Court.  The court ruled unanimously against him.

Yahoo news reports:

"In the course of his routines, Sicari has demeaned certain people based on national origin and religion and has revealed his political leanings," according to the court's opinion. "The court cannot ignore the distinct possibility that a person who has heard a routine founded on humor disparaging certain ethnic groups and religions will not be able to readily accept that the judge before whom he or she appears can maintain the objectivity and impartiality that must govern all municipal court proceedings."

...and that is no laughing matter.

According to the New York Times, Sicari has resigned the judgeship, leaving behind his $13,000 annual income.

"Now appearing, Vince August."
"Thank you, ladies and gentlemen.  I'll be here all week."

source of image: 

Oyay! Oyay! Oyay! Now presiding, the Honorable Judge Vincent Sicari:

source of image:

Monday, September 23, 2013

The Role of Social Media in Law Enforcement

Former new England Patriot NFL player, Brian Holloway, was shocked when his college aged son told him that 300-400 high school and college aged kids were having a Labor Day weekend party in Holloway's country home in the Hudson valley, and tweeting pictures of the festivities.  Holloway got on-line and saw a picture of a drinking youth standing on top of the dining room table that he bought with his Super Bowl bonus.  Significant damage was done to the house that Holloway has owned since 1981. Police are investigating and the pictures posted on twitter and over 170 other tweets have already helped identify over 200 of the estimated 300+ partygoers.

Holloway, a motivational speaker, is trying to turn the event into a teachable moment.  He has created a website for identifying participants but also to invite them to get involved in community service - starting with coming over to clean up his house.

Holloway suggests:
 Suppose these students came together and created a voice of accountability and reconciliation that spread across the county with all the power and speed of social media?    It’s happened before?    That would definitely save lives.

Featured prominently among tweeted pictures of youths at the party is a girl wearing a UConn sweatshirt. Ouch!

Friday, September 20, 2013

Law Music Video: Songs in the Classroom

On occasions too numerous to link here, I have suggested the beneficial pedagogical use of song in the legal studies classroom. Perhaps the broadest support is included here.  Or click on the tabs for law lessongs, law songs or music videos in the index on the left.  Clearly, I am not the only educator thinking this way.  Contracts professor Mark Petit at BU Law School has been a national news story for using songs in his class.  ALSB colleague Robert Emerson at U of Florida uses costumes and theater to reach his students.

The Friday Law Music Video posts for the next several weeks will feature other examples of college professors making pedagogical use of songs in their classrooms. Perhaps, you will find encouragement to experiment with non-traditional but effective teaching methods.

Thursday, September 19, 2013

Wednesday, September 18, 2013

No Wonder Our Students Get Confused About How Law Works.

Recent inconsistent and perplexing decisions by the NCAA regarding the eligibility of college athletes have been in the forefront of college sports reporting. We all know that the NCAA is not a law-making body.  It is a private membership organization. However, it does make rules for its membership and it enforces those rules. Given the number of questions that I have received over the years from my students asking, "Can the NCAA do this or that?" I am pretty sure that many of my students are confused about the role of the NCAA.  many see their rules and regulations and enforcement decisions as "law." And, of course, within the organization, and for the college athletes governed by these rules, they do have the effect of law on college athletics.

So, that is why the recent spotlight on the NCAA's historical pattern of acting without reference to precedent presents a teaching moment for us. As reported by SB nation, several seemingly similar cases have been decided inconsistently. Cases that seem to fall well within the spirit of a rule are denied over seeming technicalities. And, in all this, the NCAA acts without explanation.  Imagine if a court justified its ruling on the basis of "because I said so."

This recent NCAA publicity gives an opportunity to use news events that your students already know to make comparisons to law and the legal system and enhance learning.

Click the NCAA logo below to go to a video report:

Tuesday, September 17, 2013

The Dating Contract

There are precious few light-hearted videos on contracts that are appropriate for use in class.  While this one does feature a young woman "flipping the bird" it is pretty mild as far as these student-made videos go.

Monday, September 16, 2013

Proximate Cause: Tragic Events Underlie Causation Issue.

Thanks to my colleague Robert Bird for sharing this news story.

The Lincoln (Nebraska) Journal Star reports that a Nebraska man has filed a wrongful death lawsuit against WalMart and the maker of the plastic bags into which WalMart associates bag groceries.  Apparently, the man's wife purchased two 42 ounce cans of a Lachoy product and a 2 lb. bag of rice.  The WalMart cashier allegedly put all items into one bag without double-bagging.  In the way to the car, the bag broke, one of the cans fell out breaking the victims toe and causing a gash.  Eventually the gash became infected and subsequently resulted in the victim's death nearly a year later.

Assuming the cashier's failure to double-bag the groceries is a breach of the duty of care, and assuming that the plaintiff was not more than 50% negligent for not double bagging it on her own or using a grocery cart to move the groceries to her car, was the injury a natural and probable and foreseeable result of the breach of duty? Is there a sufficient legal nexus or proximity between the duty breach and the death? It sounds like a law school exam question.

See other posts on causation here and here.

Friday, September 13, 2013

Thursday, September 12, 2013

No One Likes to Get Served With Legal Papers

No one likes to get served with legal papers. I don't think process servers get enough credit and have raised these issue in the past:  here, here and here.

Consider the article that runs under this headline: "Police" Sword Wielding Man Chased State Marshal"

Process servers face assaults, hostile law enforcement officers, lax regulation . . . etc.   Watch:

Wednesday, September 11, 2013

Beer Ethics

View the Beer vs. God controversy as reported, or rather opined, by Fox News.  The source of this video is from a YouTube site belonging to Mass. Tea Party and bears the title "God Cut From Commercial - Sam Adams Omits 'Their Creator' Phrase in Constitution."  Hmmm?  Does the Constitution mention a creator - or was that some other old timey document from back in the day. Constitution - Declaration of Independence - whatever . . . it still proves . . . something, I think.

The brewery's response is that the Beer Institute standards for ethical advertising do not allow the use of religion to sell beer.

I wonder what the reaction would have been if the commercial said "God wants you to buy this beer."

Tuesday, September 10, 2013

Featured Case Revisited: Wood v. Lucy, Lady Duff Gordon

This blog previously featured a post on the case of  Wood v. Lucy, Lady Duff Gordon.  As most readers will know, that is a case on consideration wherein a potentially illusory promise was given life by Judge Cardozo's imposition of an implied obligation of good faith.

Perhaps some of the resources below can help to breathe life into a century old case and turn a dry legal principle like "consideration" into an enjoyable learning experience.

Stanford law Professor R. B. Craswell, whose songs have previously been featured in this blog, now has a catchy tune that not only describes the facts and the holding of the case, but hearkens back to the historical era of the proceedings.

Sometimes, it is helpful to get students to see cases from the perspective of the parties, rather than as simply a legal principle to study. This case involved parties who were colorful characters. Lucy, Lady Duff Gordon's troubles stemming from her successful escape form the Titanic disaster are well documented. See the video at prior post, here.  Lady Duff Gordon's fashion house was known as the "House of Lucile." More of her background can be read here:  Lucile, Her Life By Design

Image from:

When Lucy started listing her clothes for sale with Sears Roebuck, Wood sued for breach of contract. Images from the Sears Roebuck Catalog that constituted Duff Gordon's breach of contract:

image source:

Duff Gordon image from:

Lady Duff Gordon at work with one of her models:
Image source:

Finally, below is a video of a remastered 1917 film showing Duff Gordon's fashions and technique of using live models, a transformative innovation in the fashion industry.

Monday, September 9, 2013

Criminalizing Homelessness

If we start with the premise that law can be employed as a tool to shape society, then we should probably be disturbed about this report from Morning Edition on NPR.  You will hear as you listen to the story, that more municipalities are criminalizing homelessness and cracking down on churches and agencies that try to aid the homeless.  Rather than investing in shelters, soup kitchens, mental health and addiction services, the governmental response is to target the victim.  Is this the best use of law?  Is it an issue of justice or expedience? Can homelessness be "solved" by criminalizing it?

Business interest are a factor here as cities seem to be using these laws to try to clear the presence of the homeless from their downtown business districts. That raises other questions about the role of law.

The NPR story available at the audio link is very good.  Below is a video that might be used to complement the story.

Friday, September 6, 2013

Law Music Video: The Chemical Worker's Song by Great Big Sea

This week the law music video is The Chemical Worker's Song by Great Big Sea.  

What is the nature of "industry" and what role should law play in its regulation of worker safety, consumer safety, financial dealings, etc.?

Thursday, September 5, 2013

Separation of Church and State U?

An article in the Wall Street Journal explores a growing trend of faith based dormitories being built and run by  religious organizations on the campuses of public universities.  What are the issues that relate to separation of church and state?  The Freedom From Religion Foundation has raised them. What do you think?

These guys (The Young Turks) discuss the issues in their typically "hip" sort of, "It's cool - my college had a Black dorm and a Native-American dorm" kind of way:

Wednesday, September 4, 2013

Law Must Have Legitimacy - or at Least the Appearance of it.

Our legal system depends to a great degree on the voluntary compliance of the citizenry. And the voluntary compliance of the citizenry depends to a  great degree on the law's legitimacy - or at least the belief that the law is legitimate.  That belief is based largely on the appearance of legitimacy created by the system's outward manifestations (to borrow a concept from agency/apparent authority law).  Last week, this blog featured a video from Judge Posner talking about judicial decision-making.  In it he says that while judges may decide cases one way or another based on political ideology, they can't say that they do.  So they dress the justifications for their decisions up in fancy constitutional theories.  Those "fancy theories" serve to legitimize the decision.  That is why we teach about Legal Reasoning and Stare Decisis and we refer to quotes like being "a nation of laws, not of men" etc.  Although we know that all these institutional concepts leave enough wiggle room for judicial decision making to be based on ideology, we wink and stammer and continue to talk about law being insulated from politics.

Certainly, the judicial system is a different political animal from a legislature. Everyone expects legislatures to be political. But, so far, we have maintained the all important appearance of legitimacy in the courts. And that has a tremendous impact.

Here is Justice Breyer talking about the importance of legitimacy:

Here is a clip from the movie "The Man of the Year."  The scenario is that the nation is voting for the US President and, for the first time, employing a nationwide electronic voting system designed by a company called Delacroy.  On election day, one of the programmers has discovered a programming glitch that is resulting in the votes being miscounted. She tries to tell someone and gets a talking to from Delacroy's general counsel.
(Note: This is a YouTube clip.  If you find it useful, download it ASAP as it is likely to soon disappear subject to a copyright notice.  We wouldn't want any of that learning going on for free!)

Tuesday, September 3, 2013

File Sharing Judgment of $675,000 Upheld

A Federal Appeals Court has upheld the $675,000 verdict in favor of the RIAA against former Boston University graduate student Joel Tenenbaum.  As originally reported in this blog, Tenenbaum had been sued for sharing songs that had copyright protection.  His plight attracted the services of famed Harvard professor Charles Nesson of "A Civil Action" fame.

This was not a case of a naive college students failing to understand the law and its ramifications. The court called Tenenbaum's conduct "egregious" in that he shared the files intentionally knowing that doing so was a copyright violation and continued to do so after several warnings from the RIAA.

The case explained:

Monday, September 2, 2013

The Working-Person and the Law

I have previously posted these videos below in different contexts.  But in honor of Labor Day, I thought they could help in contemplation of the relationship between the working-person and the law.