Featured Case Update: White v. Samsung

This blog originally featured the Vanna White v. Samsung case in the post found here.  Included there is an image of the part of the Samsung ad that features the robot that implicates Vanna White 's identity.  Thanks to the website of Michigan Law Professor Jessica Litman, the full Samsung ad is reproduced below.  Thanks to Professor Litman for sharing and enriching the trove of resources available for us to use in our common educational mission.

Law Lessong: The Bonnie Ships Peerless

The next installment in the “Law Lessong” series is The Bonnie Ships Peerless.  This simple video and song from a Power Point presentation helps explain the case of Raffles v. Wichelhaus in which the doctrine of mutual mistake was declared and explained.
Learn more about Law Lessongs from the post found here.  More videos may be found at my youtube channel. Please feel free to use them in the classroom or as assignments or in any way that they work for you as an educational resource.

This song was also recently featured in the ContractsProf Blog.

Featured Case Update: Stambovsky v. Ackley

In a post last September, this blog featured the contracts case of Stambovsky v. Ackley - the Nyack, NY Haunted House case.  The Court's decision that the Seller was required to disclose to her Buyer the belief that the house was haunted, was premised primarily on an article that the Seller wrote for Reader's Digest magazine entitled, Our Haunted House on the Hudson. Now, thanks to the Halloween Addict Blog, that 1977 Readers Digest article is available for viewing.  Thank you, Halloween Addict, for sharing this important classroom resource.

Further update: An important part of the court's rationale included:

From the perspective of a person in the position of plaintiff herein, a very practical problem arises with respect to the discovery of a paranormal phenomenon: "Who you gonna' call?" as a title song to the movie "Ghostbusters" asks. Applying the strict rule of caveat emptor to a contract involving a house possessed by poltergeists conjures up visions of a psychic or medium routinely accompanying the structural engineer and Terminix man on an inspection of every home subject to a contract of sale. . . . In the interest of avoiding such untenable consequences, the notion that a haunting is a condition which can and should be ascertained upon reasonable inspection of the premises is a hobgoblin which should be exorcised from the body of legal precedent and laid quietly to rest.

The fact that a house's reputation for being haunted may not have been easily discoverable upon inspection was likely true in 1991.  But is it still true today? A potential buyer need not employ Ghostbusters but may exercise a simple Google search to discover the Seller's boasts of living in a haunted hosts. Is a "Google search" a reasonable requirement to impose by law on the Buyer, rather than imposing a duty to disclose on the Seller?


Photo credit: Halloween Addict Blog

Featured Case: Baer v. Chase: "Taking Care" of Things

In Baer v. Chase, the Court of Appeals for the 3^rd Circuit upheld a district court’s finding for the defendant on a motion for summary judgment.  Baer, a former New Jersey prosecutor shared some of his ideas about a TV show based on the activities of New Jersey organized crime families with Chase, a TV producer/director.  Unbeknownst to Baer, Chase had already been actively researching and writing a TV series that would become The Sopranos. Chase consulted with Baer on an occasion or two and used Baer’s contacts to arrange meetings with New Jersey detectives who shared stories about investigation of mob crime activities.  Baer alleged that Chase had promised that if the show became successful, Chase would “take care of him.” The court found that the contract’s description of Chase’s performance was not sufficiently certain and definite.  The Court allowed the quasi contract claim for quantum meruit to proceed to a trial which resulted in a defendant's verdict.

Given the way things get “taken care of” in the underworld, Baer may have gotten away easy.

Did you take care of that thing?

Taking care of two things:

Having your lawyer take care of things:

Mildred and Richard Loving Photos Released

Newly discovered photos of Mildred and Richard Loving taken in 1965 have been made public. The Lovings were the plaintiffs in the Supreme Court case that struck down Virginia's anti-miscegenation laws. The photos were discovered during the making of a documentary, The Loving Story, due for release in February.  Click here to see the newly released photos.

Featured case: Loving v. Virginia.

The video below is a new release of a live performance of Nanci Griffith's musical tribute to the Lovings.

The Story of Citizens United

The video below was shared on the ALSB listserve some time ago.  Unfortunately, I don't remember who shared it so I can't acknowledge the credit that is well deserved . Since this blog has a potential reach beyond the ALSB membership and the video is now available on YouTube, I am embedding it below.

I think that there are a number of ways to use this video in class.  I use it in an ethics lecture, emphasizing the video's description of the history of the corporation and leading into a discussion about different ethical standards and considerations for human persons and corporations (fictional persons).

To aid in discussing the Citizens United v. FEC case, I have also added below a trailer for the movie Hillary and an ad for the prospective DVD release of the movie that prompted Citizens United to seek judicial determination of its rights.

Featured Case: Wood v. Lucy, Lady Duff Gordon

In this contract law classic, Justice Benjamin Cardozo of the NY Court of Appeals establishes the doctrine of an implied obligation of good faith. Here is the hornbook brief summary of the case: Lady Duff Gordon is a fashion designer.  Otis Wood is a NY advertising man.  They enter into a written contract whereby Gordon grants Wood exclusive rights to market and sell her goods and Wood agrees to account to Gordon for 1/2 of the proceeds. Eventually, Gordon begins to endorse products marketed by others and Wood files suit for breach of contract. Gordon claims that Wood's promise is illusory -as he has not bound himself to actually try to sell her fashions, but merely to account for profits, if any. Cardozo determines that serious business peole would not have taken the time to negotiate such an agreement if they had not intended some perfomance. He finds expressions of implied intent to perfom on Wood's behalf:  His promise to pay the defendant one-half of the profits and revenues resulting from the exclusive agency and to render accounts monthly, was a promise to use reasonable efforts to bring profits and revenues into existence.

So, the case is interesting and illustrative for class.  But, this is just the beginning.  If you like to personalize cases - to help students understand that these cases involve real people making real decisions, the resources available to you are plentiful. Start with an article by Columbia Law Professor Victor Goldberg. Goldberg looks at the historical evidence to conclude that, ironically, the shrewd Wood had probably carefully crafted the Gordon contract so as to refrain from binding himself to performance - precisely the course of conduct that Cardozo concluded was unlikely. However, for me, his historical information on the principal players in the litigation is even more valuable than his insightful legal analysis.

Through his paper we learn that Otis Wood was one of somewhere between 14-17 children of colorful NY Mayor Fernando Wood.  Father Fernando was famous for, among other things, having supported the Confederate cause during the Civil War. A loyal Tammany Hall Democrat, Fernando later served in Congress from NY.  Other exploits of the colorful Wood family are documented online. Read here about Otis's involvement in the estate of his aunt Ida Mayfield Wood.

For her part, Lucy Lady Duff Gordon had already lived through at least one major disaster prior to the Wood business debacle. Lucy and her husband, Sir Cosmo Duff Gordon, survived the sinking of the Titanic, but not without controversy. Her story is dramatized in the video below. There is a wealth of images of Lady Duff Gordon available on the web - here at the Encyclopedia Titanica, and here. I was unable to find any images of Otis F. Wood. But here you will find an image of a drawing book most certainly produced by Wood's lithography company in NY.

In 2008, the Pace Law Review published results of a symposium on this interesting case.  Other useful articles may be found here and here  and here.



Image of Lucy, Lady Duff Gordon from:  http://fashion.telegraph.co.uk/article/TMG8328862/Lady-Duff-Gordon-fashions-forgotten-grande-dame.html



Image from: http://dawndefined.blogspot.com/2009/04/milwaukee-museum.html



Imageof Lady Duff Gordon (third from left) and Sir Cosmo (standing directly behind her)  from: http://articles.sfgate.com/2010-10-08/news/24117249_1_titanic-memorabilia-andrew-aldridge-sir-cosmo

Featured Case: Anthony v. Blum

As reported in an article in The Business Lawyer:

In Anthony v. Blum,(1999 WL 259726 (Conn. Super. Ct. Apr. 23, 1999)). a Connecticut case, Blum had negligently represented Anthony and, in settlement, Blum executed a $10,400 promissory note on behalf of his law firm (an LLC), payable to plaintiff. Plaintiff sued Blum on the note and argued that Blum's negligence constituted the consideration for the note, thereby entitling plaintiff to hold Blum personally liable. The court held, however, that "the present action is not a malpractice action but a breach of contract action" in which the law firm was the obligor and for which "Blum is not personally liable."

So, the lawyer escapes liability on the note issued by the LLC to settle the case based on the lawyer's malpractice.  No wonder lawyers have a bad reputation for slick maneuvering.

Featured Case: Stambovsky v. Ackley - A Ghostly Silence Undermines Contract

Helen Ackley's beautiful victorian house in Nyack, NY was for sale. From the opinion of the Appelate Division of  NY Supreme Courts:

Plaintiff, to his horror, discovered that the house he had recently contracted to purchase was widely reputed to be possessed by poltergeists, reportedly seen by defendant seller and members of her family on numerous occasions over the last nine years. Plaintiff promptly commenced this action seeking rescission of the contract of sale.

Stambovsky, a resident of NY City, was not familiar with the local folklore surrounding the house at 1 LaVeta Place when he paid a $32,500 deposit on a $650,000 purchase contract. But, Ackley had made no secret of the paranormal activity in her house, writing an article for Reader's Digest entitled, "My Haunted House on the Hudson" and listing her residence on local haunted house tours.

Normally, a seller has no obligation to disclose "defects" in the house. Caveat Emptor has been the legal rule of the day.  But, as Judge Rubin points out in his decision:

From the perspective of a person in the position of plaintiff herein, a very practical problem arises with respect to the discovery of a paranormal phenomenon: "Who you gonna' call?" as a title song to the movie "Ghostbusters" asks. Applying the strict rule of caveat emptor to a contract involving a house possessed by poltergeists conjures up visions of a psychic or medium routinely accompanying the structural engineer and Terminix man on an inspection of every home subject to a contract of sale.

This very practical decision rests also on other solid grounds:

In the case at bar, defendant seller deliberately fostered the public belief that her home was possessed. Having undertaken to inform the public- at large, to whom she has no legal relationship, about the supernatural occurrences on her property, she may be said to owe no less a duty to her contract vendee.

Stambovsky was allowed to rescind the contract.  I imagine that Ackley's subsequent advertisements  read: "Haunted House For Sale!"

See UPDATE on this case here.

The Stambovsky House: photo credit: http://www.berfrois.com/2011/04/the-law-is-a-white-dog/ 

Photo credit: http://nyackphotos.blogspot.com/2010/03/haunted-house.html
:

Photo credit: http://ktransit.com/Kavanagh/Ghost/ghost.htm

Featured Case: Gonzales v. Raich

Angel Raich and Diane Monson, suffering from serious medical ailments, were being treated with marijuana under the California Compassionate Use Act.  Monson grew her own marijuana.  Raich relied on two local men to raise marijuana for her. The plaintiffs actions were legal under California law but ostensibly illegal under federal law. The plaintiffs instituted an action for declaratory judgment against the federal governmnet seeking a ruling that that federal regulation exceeded the Commerce Clause power. The Supreme Court ruled in favor of the federal government relying on Wickard v. Filburn analysis:  "Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce."

Beyond the obvious Commerce Clause / Enumerated Powers / Federal v. State Power issues, I think that there are 4 other really interesting aspects of this decision that can be explored in class:

1. Ten years before, the Supreme Court's decision in US v. Lopez purported to draw the line for a more limited use of the commerce clause power.
"To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 8. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30. This we are unwilling to do."
What are we to make of the Commerce Clause power now?

2.  Justice Scalia (voting with the majority for limited federal power in Lopez) filed a concurrence in Raich.
The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself “substantially affect” interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are “reasonably adapted” to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121.
This is undoubtedly a broad view of federal regulatory power.  All this despite Scalia admitting in oral argument, "I used to laugh at Wickard."

3. At the time of the Raich decision, 9 states had medicical marijuana statutes. Fifteen states plus DC now have such laws and 10 more states have legislation under consideration. Are the states thumbing their noses at the feds?  Do the feds care? After announcing that Federal resources would not be used to purusue marijuana use where it was legalized by states, the DOJ seems to be rethinking its position.

4. What do we do with other activities associated with marijuana use - like advertising. Will the FCC take action against broadcasters who run ads for dispensaries? Would a new executive administration be more aggressive in enforcement of federal law?

A variety of images are available at Voices of American Law site.  Plaintiffs Monson and Raich:

Featured Case: Cherry v. Des Moines Leader

The Cherry sisters, farm girls from Iowa, became famous in the late 1890's with their travelling early vaudeville act.  Their sad fate was to have earned their fame as a result of their suspect talent and the hideous nature of their performance. (Your students will understand a reference to Rebecca Black and her "Friday" video.)  Billy Hamilton, the editor of the Odebolt Iowa Chronicle attended the Cherry Sisters' performance in Odebolt and published a review, quoted in part as follows:

The audience saw three creatures surpassing the witches in Macbeth in general hideousness. Effie is an old jade of 50 summers, Jessie a frisky filly of 40, and Addie, the flower of the family, a capering monstrosity of 35.  Their long skinny arms equipped with talons at the extremities, swung mechanically, and [soon] waved frantically at the suffering audience.  Their mouths opened like caverns, and sounds like the wailing of damned souls issued therefrom.  They pranced around the stage with a motion that suggested a cross between the “danse du ventre” and a fox trot – strange creatures with painted faces and hideous [demeanor].  

Effie is spavined, Addie is knock-kneed and stringhalt and Jessie, the only one who showed her stocking, has legs with calves as classic in their outlines as the curves of a broom handle.... Not even in the woods around Sac City, nor in the wilds of Monona county, could three such raw and rank specimens of womanhood be found.

The review was reprinted in the Des Moines Leader prompting a defamation lawsuit by Addie Cherry against both newspapers.  In upholding the trial court's directed verdict the Iowa Supreme Court preserved the right of fair comment.  Public performance invites comment - even if the performer disagrees with the reviewer's characterization. 

One who goes upon the stage to exhibit himself to the public, or who gives any kind of a performance to which the public is invited, may be freely criticised. He may be held up to ridicule, and entire freedom of expression is guarantied dramatic critics, provided they are not actuated by malice or evil purpose in what they write. . . . Unless this be true, liberty of speech and of the press guarantied by the constitution is nothing more than a name. If there ever was a case justifying ridicule and sarcasm,--aye, even gross exaggeration,--it is the one now before us.

However, given the facts of the case, and the nature of other reviews from around the country, maybe Billy Hamilton could have avoided liability even if he had to rely on truth as a defense.

The Cherry Sisters, Revisited is a modern theatrical production based on the tribulations of the hapless siblings.  

The Cherry sisters:

 

Billy Hamilton:

Featured Case - White v. Samsung

The White v. Samsung case is well known and carried in a number of texts.  Vanna White, the hostess of TV's Wheel of Fortune, sued Samsung and its advertising agency for producing, without her permission, a print ad that featured a robot dressed in a blonde wig and evening gown, and standing in Vanna's signature pose beside the Wheel of Fortune letter board. Where, as here, the ad did not use Vanna's likeness or name, the 9th Circuit determined that Samsung's actions may still constitute an infringement upon the common law right of publicity. My favorite line from the opinion shows the court's willingness to protect the publicity right even though the judges are clearly unimpressed by Vanna's "talent."

Television and other media create marketable celebrity identity value. Considerable energy and ingenuity are expended by those who have achieved celebrity value to exploit it for profit. The law protects the celebrity's sole right to exploit this value whether the celebrity has achieved her fame out of rare ability, dumb luck, or a combination thereof.

The court relied heavily on Midler v. Ford.

Samsung filed a motion for re-hearing.  Though denied, the thoughtful dissent is oft cited.

A related case that students may be interested in hearing about is the Keller case involving NCAA Athletes' publicity rights in the use of their "images" in video games. Anastasios Kaburakis from St. Louis University has a recent publication on that case.

For those of you who have searched for many years for a copy of the original Samsung ad, I hope you will be pleased to see, below, an image that I believe to be the full ad minus only the caption as quoted in the decision, ""Longest-running game show. 2012 A.D." Source.

See updated post here for a copy of the print ad.



Thanks to Ross Petty at Babson for sharing the following complimentary image of Vanna White:

Featured Case: Loving v. Virginia

In this well known case, the US Supreme Court struck down  all anti-miscegenation statutes on both Substantive Due Process and Equal Protection grounds.  My favorite quote from the case is this:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men [and women]. Marriage is one of the "basic civil rights of man[kind]," fundamental to our very existence and survival.

There is a fair amount of video material available on this case. I have chosen to post a few videos that I hope you will find useful for presenting this case in class. First, there is an original ABC news report on the case from 1967. The second is a live performance by singer/songwriter Nanci Griffith of her song, The Loving Kind, written about Midred and Richard. This clip has already appeared and disappeared from YouTube a couple of times.  So, if it is here when you read this post, and you want to use it for educational purposes, you should download it for classroom use.  The third is The Ballad of Mildred Loving. Songs about Supreme Court cases are pretty rare, but this case has inspired at least two.  The last video makes a comparison to same-sex marriage restrictions and an appeal to keep religious beliefs from impacting civil rights. There are a number of good websites with personalized stories and images as well. Three may be found here, here and here.  Podcast.

Featured Case: Heart of Atlanta Motel v. US and Katzenbach v. McClung

The US Supreme Court decisions in these iconic Civil Rights Act/Commerce Clause cases are readily available on line: Heart of Atlanta Motel; Katzenbach.  I try to personalize these cases by providing some photos or articles about the people involved in the cases.  I think that it is important for students to understand that law is more than just words in a book.  Law involves the stories of real people, the way they act and react and how their lives were impacted by the legal system.  This site has pictures of the Heart of Atlanta Motel, including a larger version of the one reproduced below. Below are a couple of pictures of Ollie's Barbeque, the Birmingham, AL. restaurant that was the subject of Katzenbach.  Ollie's restaurant is out of business, but you can still buy some of Ollie's barbecue sauce.

Featured Case: Lucy v. Zehmer

This iconic case is a staple in contract law. Students can't help but remember Adrian Hardy Zehmer's testimony that he was "high as a Georgia Pine" and that the transaction "was just a bunch of two doggone drunks bluffing to see who could talk the biggest and say the most."  The opinion is avilable on the internet in a number of forms.  This one has a scanned copy of the front and back of the Ye Olde Virginnie Restaurant order pad that was used to scrawl out the contract (reproduced below at bottom). Thanks goes to Frank Snyder at Texas Wesleyan University Law School who unearthed and posted a digital photo of the contract (below).  Prof. Snyder has also posted a number of photographs relevant to the case which can be found at the AALS Contracts Section website.  Read his blog post, here. Thanks, again, Prof. Snyder for using the internet to make these resources available for all of us to use in the classroom.
Lucy v Zehmer Image

Featured Case - State v. Kadijah: Is "Oversleeping" Willful Criminal Conduct?

State v. Kadijah is a Connecticut Appellate Court decision. The defendant, charged with three counts of drug posession, failed to appear at the appointed time for the second day of jury selection for her trial.  Her lawyer called her to discover that she had overslept and counsel represented to the court that the defendant was en route.  The court declined to wait and entered an order for re-arrest moments before the defendant arrived at the courthouse. Prosecutors added a charge of felony "willful failure to appear" (see statutory language below).  Subsequently, the defendant's motion to suppress evidence in the drug cases was granted and the drug charges were nolled.  The prosecution proceeded to trial on the willful failure to appear charges, only. At trial, the defendant testified that: she had worked at her regularly scheduled job delivering newspapers the night before from approx 1-8 AM.  She arrived home and sat on the couch to rest.  She instructed her boyfriend to wake her if she fell asleep.  She did fall asleep and did not wake up until she received a phone call from her lawyer.  Upon receiving the call, she proceeded immediately to the courthouse. Upon these facts, the court determined that the jury's guilty verdict was not supported by sufficient evidence, beyond a reasonable doubt, of "willfullness" and entered a judgment of not guilty.  Read the NY Times article.  Here is another link to an unofficial report of the case decision. And, just to make sure we are wearing suspenders AND a belt, here is another and here is another.  (The Connecticut Supreme Court dismissed the appeal per curiam stating that certification had been improvidently granted.)


Ayanna Kadijah:

General Statutes § 53a-172 (a) provides in relevant part: ‘‘A person is

guilty of failure to appear in the first degree when (1) while charged with

the commission of a felony and while out on bail or released under other

procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear . . . .’’

Featured Case - Hustler v. Falwell: Intentional Infliction of Emotional Distress

The U.S. Supreme Court opinion in this case is well known both in and out of the academy. Access to a picture of the "ad parody" is readily available.  A copy is reproduced below.  Less available is a picture of the Campari ad campaign which the Hustler ad parodied. A copy is provided, below. Also provided below is a clip from "The People vs. Larry Flint" dramatizing the argument before the Supreme Court in Falwell.

Featured Case - Midler v. Ford: Commercial Appropriation

Bett Midler sued Ford in the 1980's for appropriating her identity in the form of her distinctive voice.  Ford's 1980's ad campaign was aimed at "YUPPIES" (Young Urban Professionals).  The idea was to use some evocative song from the 1970's, that would remind these 1980's disposable spenders of their more carefree college days. "Gosh, if I owned that car it would be just like being back in college." After Midler spurned Ford's entreaties to use her rendition of "Do You Want to Dance" from 1973, Ford's advertising agency hired one of Midler's former back-up singers, Ula Hedwig, to record a version.  She was instructed to "sound as much as possible like the Bette Midler record." The 9th Circuit ruled "that when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California."

I like to start the class discussion of this case by showing a minute or so of an early version of the song.  I prefer this one from Cliff Richard and the Shadows because of its "old school" set and its energy.  Plus, Richard introduces the song by saying that the band will perform a "song that is more in [their] idiom." (That's a vocabulary enhancer for those students paying close attention.) The Beach Boys' version is also available.  Or you may prefer the original by Bobby Freemen, set here to a cartoon video.





Then, I play 30 seconds or so of Midler's version:





Then, of course, comes the actual 1986 mercury sable ad:





Finally, I have this site open so as the ad ends, I click on the mp3 sample of Midler's Do you Want To Dance (found about halfway down the page). By a neat coincidence, the mp3 clip of Midler's version begins at precisely the point where Ula Hedwig's version from the ad ends. The result is a pefect side by side match of the two versions allowing students to make their own assessments regarding Ford's appropriation of Midler's "identity" in the form of her distinctive voice.